[ v03 p901 ]
03:0901(131)CO
The decision of the Authority follows:
3 FLRA No. 131
NATIONAL TREASURY EMPLOYEES UNION
JOINT COUNCIL (CHAPTERS 14 and 36)
Respondent
and
INTERNAL REVENUE SERVICE AND
IRS ST. LOUIS DISTRICT
Complainant
Case No. 60-5878(CO)
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING, 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 COMPLAINANT FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE RESPONDENT FILED A
RESPONSE TO THE COMPLAINT'S EXCEPTIONS.
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 (RE F.R. 36040) WHICH TRANSFER OF FUNCTIONS IS IMPLEMENTED
BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
2400.2). 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 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,
INCLUDING THE COMPLAINANT'S EXCEPTIONS AND THE RESPONDENT'S RESPONSE TO
THE EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION, AS MODIFIED HEREIN.
THE INSTANT CASE INVOLVES THE POSTING BY THE RESPONDENT OF AN
OFFICIAL NOTICE OF THE ASSISTANT SECRETARY IN A PRIOR CASE (CASE NO.
62-4870(CA)), WHICH POSTING ALLEGEDLY VIOLATED SECTION 19(B)(6) OF
EXECUTIVE ORDER 11491, AS AMENDED. ACCORDING TO THE FACTS AS FOUND BY
THE ADMINISTRATIVE LAW JUDGE AND DETAILED IN HIS RECOMMENDED DECISION
AND ORDER, THE POSTING WAS INCONSISTENT WITH THE SETTLEMENT REACHED BY
THE PARTIES IN THE PRIOR CASE, UNDER WHICH POSTING WAS NOT REQUIRED.
MOREOVER, THE RESPONDENT, IN ITS UNAUTHORIZED POSTING AND DISTRIBUTION
OF THE OFFICIAL NOTICE, ALTERED AND DEFACED THE NOTICE AND
MISREPRESENTED THE NATURE OF THE SETTLEMENT AGREED TO BY THE PARTIES IN
THAT CASE.
WHILE WE AGREE WITH THE CONCLUSION OF THE ADMINISTRATIVE LAW JUDGE
THAT THIS CONDUCT OF THE RESPONDENT WAS NOT VIOLATIVE OF SECTION
19(B)(6) OF THE EXECUTIVE ORDER, WE CONDEMN THE ACTIONS TAKEN BY THE
RESPONDENT AND EMPHASIZE THAT OUR DISMISSAL OF THE COMPLAINT DOES NOT IN
ANY MANNER CONDONE THE RESPONDENT'S CONDUCT. THE BREACH OF THE
SETTLEMENT AGREEMENT AND THE ALTERATION OF THE OFFICIAL NOTICE BY THE
RESPONDENT CONSTITUTE A CLEAR ABUSE OF THE ADJUDICATORY PROCESSES
ESTABLISHED BY THE EXECUTIVE ORDER. ADDITIONALLY, SUCH CONDUCT BY THE
RESPONDENT GRAVELY UNDERMINES SETTLEMENT EFFORTS, WHICH DEPEND ON THE
GOOD FAITH OF THE LITIGANTS AND WHICH ARE CRITICAL TO THE EFFECTIVE
OPERATION OF THE ENTIRE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
PROGRAM.
THE ADMINISTRATIVE LAW JUDGE INDICATED, AND WE AGREE, THAT A FORUM
FOR THE RESOLUTION OF THE DISPUTE HERE INVOLVED MAY LIE THROUGH THE
GRIEVANCE MACHINERY OF THE PARTIES' NEGOTIATED AGREEMENT, WHICH
AGREEMENT PROHIBITED THE POSTING OF MATERIALS WITHOUT AGENCY APPROVAL.
HOWEVER, THE ADMINISTRATIVE LAW JUDGE FURTHER ASSERTED THAT RELIEF FOR
SUCH OFFENSIVE CONDUCT BY THE RESPONDENT FALLS OUTSIDE THE AMBIT OF THE
UNFAIR LABOR PRACTICE PROCEDURES OF THE EXECUTIVE ORDER. WE DO NOT
ADOPT SUCH ASSERTION. WITHOUT HERE PASSING UPON THIS ISSUE, WE NOTE
THAT SECTION 19(B)(1) OF THE ORDER PRECLUDES INTERFERENCE WITH AND
RESTRAINT BY A LABOR ORGANIZATION OF EMPLOYEES IN THEIR RIGHTS ASSURED
BY THE ORDER. THE ADMINISTRATIVE LAW JUDGE HIMSELF TACITLY RECOGNIZED
THE RELEVANCE OF THIS SECTION, DENYING ONLY ON TIMELINESS GROUNDS
COMPLAINANT'S MOTION TO AMEND THE COMPLAINT TO INCLUDE A 19(B)(1)
ALLEGATION (NOTE 1 OF RECOMMENDED DECISION AND ORDER).
NEVERTHELESS, AS ALREADY MENTIONED, WE AGREE WITH THE CONCLUSION OF
THE ADMINISTRATIVE LAW JUDGE THAT RESPONDENT'S ACTIONS WERE NOT
VIOLATIVE OF SECTION 19(B)(6) OF THE EXECUTIVE ORDER, AS ALONE ALLEGED
IN THE PRESENT CASE. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 60-5878(CO) BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JULY 31, 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:
JOSEPH V. KAPLAN, ESQ.
ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, NW., SUITE 1101
WASHINGTON, D.C. 20006
ROGER P. KAPLAN, ESQ.
CHIEF BRANCH NO. 1
OFFICE OF GENERAL COUNSEL
GENERAL LEGAL SERVICES DIVISION
INTERNAL REVENUE SERVICE
1111 CONSTITUTION AVENUE, NW.
ROOM 4562
WASHINGTON, D.C. 20224
SUSAN D. MCCLUSKEY, ESQ.
ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W., SUITE 1101
WASHINGTON, D.C. 20006
FOR THE RESPONDENT
ROGER P. KAPLAN, ESQ.
INTERNAL REVENUE SERVICE
1111 CONSTITUTION AVENUE, NW.
ROOM 4562
WASHINGTON, D.C. 20224
FOR THE COMPLAINANT
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON MAY 7, 1979 BY
THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, KANSAS
CITY REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED IN THIS CASE ON
JUNE 26, 1979 AT KANSAS CITY, MISSOURI.
THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS
AMENDED, (HEREIN CALLED THE ORDER). AN ORIGINAL COMPLAINT WAS FILED ON
AUGUST 18, 1978 BY INTERNAL REVENUE SERVICE, AND IRS ST. LOUIS DISTRICT
(HEREIN CALLED COMPLAINANT) AGAINST NATIONAL TREASURY EMPLOYEES UNION
AND NTEU JOINT COUNCIL (CHAPTERS 14 AND 36). IT ALLEGED THAT SAID
UNIONS VIOLATED SECTION 19(B)(6) OF THE ORDER BY MISREPRESENTING A
SETTLEMENT REACHED BETWEEN THE PARTIES IN A PRIOR CASE. THE COMPLAINT
AVERRED THAT THE UNIONS POSTED A DOCTORED COPY OF A DEPARTMENT OF LABOR
'NOTICE TO EMPLOYEES' BY ATTACHING PICTURES OF TWO OFFICIALS OF THE
COMPLAINANT AND INSERTING THE WORD "GUILTY" ABOVE THE PICTURES.
COMPLAINANT ALLEGED THIS CONDUCT WAS A BREACH OF CONTRACT, THAT IT
SHOWED BAD FAITH, AND THAT IT CONSTITUTED A REFUSAL TO BARGAIN. AN
AMENDED COMPLAINT WAS FILED ON NOVEMBER 11, 1978 AGAINST NATIONAL
TREASURY EMPLOYEES UNION JOINT COUNCIL (CHAPTERS 14 AND 36), (HEREIN
CALLED RESPONDENT). THE AMENDED COMPLAINT CONTAINED THE SAME
ALLEGATIONS AS IN THE ORIGINAL COMPLAINT.
RESPONDENT FILED AN ANSWER ON SEPTEMBER 8, 1978 DENYING THE
COMMISSION OF ANY UNFAIR LABOR PRACTICE. IT ALSO RAISED SECTION 19(D)
AS A DEFENSE OR BAR TO THIS PROCEEDING.
BOTH PARTIES WERE REPRESENTED AT THE HEARING AND WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER BOTH PARTIES FILED BRIEFS WITH THE
UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED. SUBSEQUENT TO THE HEARING,
ON AUGUST 17, 1979, COMPLAINANT FILED WITH THE UNDERSIGNED A MOTION /2/
TO FURTHER AMEND ITS AMENDED COMPLAINT BY INCLUDING A 19(B)(1) VIOLATION
BASED ON THE SAME CONDUCT WHICH COMPLAINANT ALLEGED WAS VIOLATIVE OF
19(B)(6).
UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, AND BASED ON ALL THE TESTIMONY AND EVIDENCE ADDUCED
AT THE HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS AND
RECOMMENDATIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN RESPONDENT HAS BEEN AND STILL IS THE
EXCLUSIVE BARGAINING REPRESENTATIVE OF THE PROFESSIONAL AND
NON-PROFESSIONAL EMPLOYEES AT THE ST. LOUIS DISTRICT, INTERNAL REVENUE
SERVICE. BOTH COMPLAINANT AND RESPONDENT /3/ ARE PARTIES TO A
COLLECTIVE BARGAINING AGREEMENT COVERING THE AFORESAID UNIT OF
EMPLOYEES. THE SAID AGREEMENT, BY ITS TERMS, IS EFFECTIVE FROM JANUARY
31, 1977 FOR A FOUR YEAR PERIOD.
2. THE CONTRACT BETWEEN THE PARTIES HEREIN, AS HERETOFORE MENTIONED,
PROVIDES IN ARTICLE 14, SECTION C AS FOLLOWS:
"MATERIAL WHICH DOES NOT REFLECT ON THE INTEGRITY OR MOTIVES OF ANY
INDIVIDUALS, OTHER
LABOR ORGANIZATIONS, GOVERNMENT AGENCIES, OR ACTIVITIES OF THE
FEDERAL GOVERNMENT, IF APPROVED
BY THE EMPLOYER, MAY BE POSTED OR DISTRIBUTED."
3. ON AUGUST 30, 1977 AN UNFAIR LABOR PRACTICE HEARING WAS HELD
BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE DEPARTMENT OF LABOR IN CASE
NO. 62-487(CA), (NTEU & NTEU LOCAL 36, COMPLAINANT AND ST. LOUIS
DISTRICT IRS, RESPONDENT). THAT CASE INVOLVED AN ALLEGED REFUSAL BY THE
SAID RESPONDENT EMPLOYER TO PERMIT MARIE GERULES, AN EMPLOYEE, TO HAVE A
UNION REPRESENTATIVE PRESENT DURING A GRIEVANCE MEETING WITH SUCH
EMPLOYEE.
4. DURING THE HEARING IN THE GERULES CASE THE PARTIES AGREED TO A
SETTLEMENT THEREOF. THE TRANSCRIPT IN SAID MATTER REFLECTS THAT THE
DIRECTOR OF THE INTERNAL REVENUE SERVICE OF THE ST. LOUIS DISTRICT
AGREED TO SEND THE UNION A LETTER STATING THAT IT WOULD NOT CONDUCT
MEETINGS WITH EMPLOYEES, IN THE FUTURE, WITHOUT ALLOWING A UNION
REPRESENTATIVE TO BE PRESENT. IT WAS FURTHER STIPULATED THAT THE
AGREEMENT WOULD BE POSTED ON THE UNION'S SIDE OF THE BULLETIN BOARD.
5. THE ADMINSTRATIVE LAW JUDGE IN THE GERULES CASE REMANDED THE
MATTER BACK TO THE REGIONAL ADMINISTRATOR FOR FURTHER ACTION. ON
SEPTEMBER 22, 1977 THE REGIONAL ADMINISTRATOR SENT FRANK D. FERRIS,
NATIONAL REPRESENTATIVE OF THE NTEU, A SETTLEMENT AGREEMENT ON A DOL
FORM, TOGETHER WITH A "NOTICE TO EMPLOYEES", PREPARED BY THE REGIONAL
OFFICE. BOTH DOCUMENTS CONTAINED LANGUAGE REQUIRED BY THE SAID OFFICE
FOR ITS APPROVAL OF THE SETTLEMENT, AND THE REGIONAL ADMINISTRATOR
DIRECTED THAT, AFTER SIGNATURES WERE AFFIXED, THE NOTICE SHOULD BE
POSTED AS SET FORTH THEREIN.
6. UPON RECEIVING WORD FROM THE REGIONAL OFFICE RE THE SETTLEMENT
AGREEMENT AND THE NOTICE TO BE POSTED, DAVID MURPHY, AN ATTORNEY FOR THE
IRS, TELEPHONED FERRIS IN REGARD THERETO. MURPHY STATED THAT THE
EMPLOYER NEVER AGREED TO POST A NOTICE; THE SETTLEMENT WAS NOT THE SAME
AS AGREED TO BY THE PARTIES; AND THE MATTER SHOULD PROCEED TO HEARING.
AFTER SOME DISCUSSION FERRIS AGREED THAT THE CASE SHOULD BE SETTLED AS
ORIGINALLY AGREED WITH A LETTER BEING SENT TO THE UNION, AND THAT A
HEARING WOULD NOT BE RESCHEDULED.
7. IN ACCORDANCE WITH THE ORIGINAL AGREEMENT TO SETTLE THE GERULES
CASE, DISTRICT DIRECTOR VOSKUIL SENT A LETTER TO DONALD E. KLAASSEN,
PRESIDENT OF LOCAL 36 AND CHAIRMAN OF RESPONDENT COUNCIL, REAFFIRMING
ITS INTENTION TO PERMIT A UNION OFFICIAL TO BE PRESENT WHENEVER
GRIEVANCES ARE DISCUSSED BY MANAGEMENT WITH EMPLOYEES, AND TO NOTIFY THE
APPROPRIATE UNION STEWARD IN ADVANCE THEREOF.
8. NATIONAL TREASURY EMPLOYEES UNION LOCAL 36 FILED A WITHDRAWAL
REQUEST OF THE COMPLAINT IN THE GERULES CASE ON OCTOBER 13, 1977, AND
THE SAID REQUEST WAS APPROVED BY THE REGIONAL ADMINISTRATOR ON THE SAME
DATE.
9. ON DECEMBER 22, 1977 KLAASSEN POSTED ON THE BULLETIN BOARD OF THE
KANSAS CITY IRS DISTRICT OFFICE A DOCTORED COPY OF THE 'NOTICE TO
EMPLOYEES' WHICH HAD BEEN SENT BY THE REGIONAL ADMINISTRATOR. PICTURES
OF TWO OFFICIALS OF COMPLAINANT WERE REPRODUCED AND PUT ON THE NOTICE:
RICHARD VOSKUIL, DISTRICT DIRECTOR OF IRS, AND EDWARD BROOKS, BRANCH
CHIEF. ABOVE EACH PICTURE WAS WRITTEN THE WORD "GUILTY", AND ABOVE THE
WORDS "NOTICE TO ALL EMPLOYEES" THE UNION REPRESENTATIVE WROTE "GUILTY
OF UNFAIR LABOR PRACTICES." KLAASSEN ALSO TAPED IN AT THE BOTTOM OF THE
NOTICE THE DATE, "SEPTEMBER 22, 1977", THE WORDS "ST. LOUIS DISTRICT
INTERNAL REVENUE SERVICE", AS THE AGENCY, "CULLEN E. KEOUGH", "REGIONAL
ADMINISTRATOR", AS THE TITLE AND NAME OF THE LABOR-MANAGEMENT SERVICE
ADMINISTRATOR OFFICIAL. HE ALSO POSTED A SEPARATE PAPER WITH THE WORDS
"GUILTY OF UNFAIR LABOR PRACTICES" WITH ARROWS POINTED AT THE EMPLOYER'S
REPRESENTATIVES.
10. THEREAFTER ON THE SAME DATE STEPHEN GREEN, PERSONNEL STAFF
SPECIALIST FOR COMPLAINANT, SAW THE DOCUMENTS POSTED BY KLAASSEN ON THE
BULLETIN BOARD. HE TOLD THE UNION OFFICIAL THAT NO MATTER SHOULD BE
POSTED WITHOUT APPROVAL FROM MIKE MCCARTHY, THE LABOR RELATIONS
SPECIALIST FOR THE ST. LOUIS DISTRICT. GREEN TOOK DOWN THE DOCUMENTS
FROM THE BULLETIN BOARD. LATER KLAASSEN AGAIN POSTED THE SAME ITEMS,
TOGETHER WITH THE LETTER FROM VOSKUIL TO KLAASSEN RE THE EMPLOYER'S
INTENTION NOT TO MEET WITH EMPLOYEES TO DISCUSS GRIEVANCES UNLESS A
UNION REPRESENTATIVE WAS PRESENT. GREEN REMOVED THESE DOCUMENTS AFTER
LEARNING THAT NO PERMISSION HAD BEEN GRANTED BY THE EMPLOYER TO POST
THEM. MOREOVER, GROUP MANAGER FRANK SCHULER GAVE KLASSEN A MEMO ON
DECEMBER 22 WHICH DECLARED THAT KLAASSEN SHOULD NOT POST ANY MATERIAL
WITHOUT THE APPROVAL OF MIKE MCCARTHY.
11. ON DECEMBER 23, 1977 KLAASSEN DISTRIBUTED COPIES OF THE
AFORESAID DOCUMENTS TO EMPLOYEES BY PUTTING THEM ON THE WORK TABLES OF
BETWEEN 25-50 INDIVIDUALS.
12. UNDER DATE OF DECEMBER 29, 1977 DISTRICT DIRECTOR VOSKUIL WROTE
KLAASSEN A LETTER WHEREIN IT WAS STATED THAT COMPLAINANT HEREIN PROPOSED
TO SUSPEND KLAASSEN FOR 3 DAYS BY REASON OF HIS POSTING THE DOCUMENTS ON
DECEMBER 22. THE EMPLOYER AVERRED THEREIN THAT THE STATEMENTS WERE
FALSE AND MISLEADING, AND THAT KLAASSEN HAD BREACHED THE CONTRACTUAL
CLAUSE PROHIBITING THE POSTING OF MATERIAL WITHOUT PRIOR APPROVAL.
13. UNDER DATE OF FEBRUARY 16, 1979 VOSKUIL AGAIN WROTE KLAASSEN A
LETTER WHEREIN THE SUSPENSION WAS WITHDRAWN. FURTHER, THE SAID LETTER
STATED IT WOULD SERVE AS A WRITTEN REPRIMAND TO KLAASSEN IN PLACE OF THE
SUSPENSION. SUBSEQUENTLY, AFTER A GRIEVANCE WAS FILED TO PROTECT
VOSKUIL'S ACTION, THE REPRIMAND WAS WITHDRAWN.
CONCLUSIONS
APART FROM CONTENDING THAT NO VIOLATION EXISTS HEREIN, RESPONDENT
TAKES THE POSITION THAT THIS PROCEEDING IS BARRED UNDER SECTION 19(D) OF
THE ORDER. IT AVERS THAT THE PROPOSED SUSPENSION OF KLAASSEN COULD HAVE
BEEN RAISED UNDER AN APPEAL PROCEDURE-- 5CFR 752.301-- AND THUS IS NOT
PROPERLY REVIEWABLE BY THE FEDERAL LABOR RELATIONS AUTHORITY.
IT IS TRUE THAT 19(D) PRECLUDES RAISING ISSUES IN A COMPLAINT
PROCEDURE WHICH CAN PROPERLY BE RAISED UNDER AN APPEALS PROCEDURE. BUT
THE PROPRIETY OF THE SUSPENSION OR REPRIMAND TO KLAASSEN, BASED ON HIS
CONDUCT IN POSTING THE DOCTORED 'NOTICE TO EMPLOYEES', IS NOT THE ISSUE
HEREIN. IN THE CASE AT BAR THE COMPLAINT ALLEGES A VIOLATION OF
19(B)(6) ON THE PART OF THE UNION. COMPLAINANT POSES THE ISSUE AS TO
WHETHER THE UNION REFUSED TO BARGAIN IN GOOD FAITH BY REASON OF THE
ALLEGED MISREPRESENTATIONS CONTAINED IN THE POSTED NOTICE, AS WELL AS BY
THE UNION'S HAVING BREACHED THE CONTRACT BETWEEN THE PARTIES. THIS, AS
I VIEW IT, RAISES A SUBSTANTIALLY DIFFERENT ISSUE FROM THAT WHICH
PRESENTED ITSELF WHEN KLAASSEN WAS REPRIMANDED PERSONALLY. THE ISSUE
HEREIN WAS NOT SUBJECT TO AN APPEAL PROCEDURE HERETOFORE, AND HENCE I
CONCLUDE THE PRESENT PROCEEDING IS NOT BARRED BY SECTION 19(D). SEE
FRESNO SERVICE CENTER, A/SLMR NO. 983.
IN MAINTAINING THAT RESPONDENT UNION VIOLATED 19(B)(6) OF THE ORDER,
THE COMPLAINANT MAKES TWO PRINCIPAL ARGUMENTS. IT CONTENDS THAT BY
POSTING A 'NOTICE TO EMPLOYEES', WHICH MISREPRESENTED THE SETTLEMENT
BETWEEN THE PARTIES AND WAS A DEFACEMENT OF A DOL DOCUMENT, THE
RESPONDENT SHOWED BAD FAITH. FURTHER, THAT SUCH POSTING WITHOUT PRIOR
MANAGEMENT APPROVAL CONSTITUTED A PATENT BREACH OF CONTRACT.
ACCORDINGLY, IT IS ARGUED BY COMPLAINANT THAT THE UNION FAILED AND
REFUSED TO BARGAIN IN GOOD FAITH AS REQUIRED BY THE ORDER.
(1) CONCEDING THAT THERE IS NO CASE ON POINT, COMPLAINANT URGES THAT
ATTENTION BE PAID TO THE ELECTION CASES BEFORE THE NATIONAL LABOR
RELATIONS BOARD. THE LATTER BODY HAS OVERTURNED ELECTIONS WHERE A UNION
HAS ALTERED AN OFFICIAL BALLOT AND DISTRIBUTED SAME TO THE EMPLOYEES
DURING ITS CAMPAIGN. SEE ALLIED ELECTRIC PRODUCTS, INC., 34 LRRM 1348.
MOREOVER, COMPLAINANT INSISTS THAT THE FEDERAL LABOR RELATIONS
AUTHORITY, LIKE THE BOARD, SHOULD NOT ALLOW ITS OFFICIAL DOCUMENTS TO BE
MISUSED AND THAT IT SHOULD GUARD AGAINST THE ABUSE OF ITS PRESTIGE.
THERE SHOULD BE NO DIFFERENCE, IT IS ARGUED, BETWEEN THE INSTANT CASE
AND THE ELECTION CASES DECIDED BY THE BOARD.
ALTHOUGH THIS MAY WELL BE A CASE OF FIRST IMPRESSION, AS COMPLAINANT
MAINTAINS, I DO NOT AGREE THAT THE CONDUCT OF RESPONDENT CAN BE PROPERLY
DEEMED AN UNFAIR LABOR PRACTICE UNDER THE ORDER. CASE CITED BY
COMPLAINANT INVOLVE OBJECTIONS TO AN ELECTION, WHICH MAY WELL BE
CONCERNED WITH CONDUCT THAT FALLS SHORT OF BEING AN UNFAIR LABOR
PRACTICE UNDER THE NATIONAL LABOR RELATIONS ACT. CERTAIN MISCONDUCT BY
EITHER PARTY MAY WARRANT SETTING ASIDE AN ELECTION. MISREPRESENTATIONS
OR MISLEADING STATEMENTS COULD WELL ENCROACH UPON THE FAIR ELECTION
PROCESS IN EITHER THE PRIVATE OR PUBLIC SECTOR. BUT IT DOES NOT FOLLOW
THAT SUCH REPRESENTATIONS OR STATEMENTS CONSTITUTE UNFAIR LABOR
PRACTICES. I DO NOT VIEW CONDUCT WHICH JUSTIFIES SETTING ASIDE AN
ELECTION TO BE EQUATABLE WITH AN UNFAIR LABOR PRACTICE IN EITHER SECTOR.
IT IS ALSO TRUE THAT THE AUTHORITY MUST ZEALOUSLY GUARD AGAINST ANY
MISUSE OF ITS PROCESSES. THERE MAY WELL BE SANCTIONS WHICH SHOULD BE
IMPOSED UPON ANY PARTY WHO HAS ALTERED OFFICIAL DOCUMENTS. IT DOES NOT
APPEAR, HOWEVER, THAT ABUSE OF OFFICIAL PROCESS /4/ IS WITHIN THE
PARAMETER OF THE UNFAIR LABOR PRACTICES DEFINED IN SECTION 19 OF THE
ORDER. WITH SPECIFIC REFERENCE TO 19(B)(6), I CANNOT CONCLUDE THAT A
REFUSAL TO BARGAIN ENCOMPASSES POSTING OF A NOTICE BY THE UNION, ALBEIT
A DOCUMENT WHICH IS ALTERED OR DEFACED. A FAILURE TO MEET OR CONFER
CONNOTES A REFUSAL TO ENGAGE IN COLLECTIVE BARGAINING, AND I DO NOT
AGREE WITH COMPLAINANT THAT THE UNION'S CONDUCT IN RESPECT TO THE
POSTING HEREIN IS TANTAMOUNT TO A REFUSAL TO BARGAIN. COMPLAINANT
INSISTS THAT A FINDING OF AN UNFAIR LABOR PRACTICE IS REQUIRED TO
DISSUADE ANY PARTY FROM TAKING ACTION SIMILAR TO THAT WHICH OCCURRED IN
THIS CASE. WHILE IT MAY BE FOUND THAT THE POSTING OF THE NOTICE BY THE
UNION WAS IMPROPER UNDER THE CIRCUMSTANCES, I FIND IT DIFFICULT TO
DENOTE THAT SUCH CONDUCT AMOUNTS TO A REFUSAL TO MEET AND CONFER WITH
THE EMPLOYER. EVEN THOUGH BAD FAITH MIGHT BE INFERRED FROM RESPONDENT'S
ACTIONS, IT CANNOT BE SAID THAT THE BARGAINING REPRESENTATIVE SPURNED
ITS OBLIGATION TO DEAL WITH COMPLAINANT.
(2) COMPLAINANT CONTENDS THAT THE UNION HEREIN BREACHED ARTICLE 14,
SECTION C OF THE AGREEMENT BETWEEN THE PARTIES BY NOT OBTAINING
APPROVAL, AS REQUIRED, TO POST THE NOTICE ON THE BULLETIN BOARD. IT
MAINTAINS THAT SUCH CLEAR CONTRAVENTION OF THE CONTRACT IS A
MODIFICATION THEREOF, AND, UNDER THE CASES DECIDED BY THE ASSISTANT
SECRETARY, IS A REFUSAL TO BARGAIN UNDER 19(B)(6) OF THE ORDER.
WHILE IT IS TRUE THAT A UNILATERAL BREACH OF CONTRACT MAY CONSTITUTE
AN UNFAIR LABOR PRACTICE, SUCH CONDUCT MUST BE A FLAGRANT AND DELIBERATE
BREACH OF THE AGREEMENT SO AS TO AMOUNT TO A UNILATERAL MODIFICATION
THEREOF. HOWEVER, NOT EVERY CONTRACT VIOLATION CONSTITUTES AN UNFAIR
LABOR PRACTICE. A SIMPLE BREACH OF THE AGREEMENT, NOT BEING FLAGRANT OR
DELIBERATE, WOULD NOT RUN AFOUL OF THE ORDER. THE PROPER FORUM FOR
SETTLING SUCH A DISPUTE LIES WITHIN THE GRIEVANCE MACHINERY OF THE
NEGOTIATED AGREEMENT. DEPARTMENT OF THE AIR FORCE, 4392ND AEROSPACE
SUPPORT GROUP, VANDENBERG AFB, CALIFORNIA, A/SLMR NO.935; SOCIAL
SECURITY ADMINISTRATION, GREAT LAKES PROGRAM CENTER, CHICAGO, ILLINOIS,
A/SLMR NO. 804.
IT CANNOT BE GAINSAID THAT THE POSTING OF THE DOCUMENT HEREIN,
WITHOUT THE APPROVAL OF THE ACTIVITY, WAS A BREACH OF ARTICLE 14,
SECTION C OF THE CONTRACT. NEVERTHELESS, I AM NOT PERSUADED THAT THIS
PARTICULAR BREACH WAS SO FLAGRANT AS TO CONSTITUTE A MODIFICATION OF THE
CONTRACT. IT DOES NOT APPEAR TO THE UNDERSIGNED THAT THE UNION WAS
INTENT UPON CHANGING THE CITED PROVISION OF THE AGREEMENT. NEITHER AN I
CONVINCED THAT RESPONDENT'S ACTION IN POSTING THE NOTICE REFLECTED AN
INTENTION TO COMPLETELY DISREGARD THAT PROVISION WITH RESPECT TO POSTING
OR DISTRIBUTING ALL MATERIAL. THE BREACH HEREIN WAS NOT, IN MY OPINION,
OF SUFFICIENT MAGNITUDE TO BE LABELED AS FLAGRANT. MOREOVER, STANDING
ALONE, IT DOES NOT WARRANT FINDING THAT IT CONSTITUTED A UNILATERAL
CHANGE IN VIOLATION OF THE ORDER.
ACCORDINGLY, AND IN VIEW OF THE FOREGOING, I CONCLUDE THAT THE
POSTING OF THE DOL "NOTICE TO EMPLOYEES" BY RESPONDENT IN ITS ALTERED
FORM DID NOT CONSTITUTE A BAD FAITH REFUSAL TO BARGAIN UNDER SECTION
19(B)(6). FURTHER, I CONCLUDE THAT THE POSTING IN VIOLATION OF THE
AGREEMENT WAS A SINGLE BREACH THEREOF INSUFFICIENT TO CONSTITUTE A
UNILATERAL MODIFICATION OF THE SAID AGREEMENT.
RECOMMENDATION
IT HAVING BEEN FOUND THAT RESPONDENT DID NOT VIOLATE SECTION 19(B)(6)
OF THE ORDER, IT IS HEREBY RECOMMENDED THAT THE AMENDED COMPLAINT HEREIN
BE DISMISSED IN ITS ENTIRETY.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: SEPTEMBER 18, 1979
WASHINGTON, D.C.
SERVICE SHEET
"RECOMMENDED DECISION AND ORDER" ISSUED BY ADMINISTRATIVE LAW JUDGE
WILLIAM NAIMARK WAS SENT TO THE FOLLOWING PERSONS BY CERTIFIED MAIL:
LINDA ENOCH
SUSAN D. MCCLUSKEY, ESQ.
ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, NW., SUITE 1101
WASHINGTON, D.C. 20006
ROGER P. KAPLAN, ESQ.
INTERNAL REVENUE SERVICE
1111 CONSTITUTION AVENUE, NW.
ROOM 4562
WASHINGTON, D.C. 20224
REGULAR MAIL:
MR. ROBERT TOBIAS
GENERAL COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, NW.
WASHINGTON, D.C. 20006
ASSISTANT DIRECTOR
LABOR-MANAGEMENT RELATIONS
U.S. OFFICE OF PERSONNEL MANAGEMENT
1900 E STREET NW.
WASHINGTON, D.C. 20415
FEDERAL LABOR RELATIONS AUTHORITY
1900 E STREET, NW., RM. 7469
WASHINGTON, D.C. 20424
ONE COPY TO EACH REGIONAL DIRECTOR
/1/ 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.
/2/ THE MOTION IS DENIED. AN ALLEGATION OF INTERFERENCE, RESTRAINT,
OR COERCION IS A NEW CAUSE OF ACTION NOT SET FORTH IN THE AMENDED OR
ORIGINAL COMPLAINT. IT IS NOT DERIVATIVE FROM THE 19(B)(6) ALLEGATION
INVOLVING AN ALLEGED REFUSAL TO BARGAIN. HENCE, ALTHOUGH IT ENCOMPASSES
THE SAME FACTS AS SET FORTH BY COMPLAINANT, THE 19(B)(1) ALLEGATION
DEALS WITH A DIFFERENT VIOLATION OF THE ORDER. AS SUCH, IT MUST BE
SEPARATELY AND AFFIRMATIVELY ALLEGED IN THE COMPLAINT AS A DISTINCT
CAUSE OF ACTION. SEE U.S. AIR FORCE, 300TH COMBAT SUPPORT GROUP,
PLATTSBURGH AIR FORCE BASE, N.Y. A/SLMR NO. 557. HOWEVER, TO PERMIT
COMPLAINANT TO AMEND ITS COMPLAINT AFTER THE HEARING TO INCLUDE SUCH
CAUSE OF ACTION WOULD BE MANIFESTLY UNFAIR TO RESPONDENT. THE LATTER
HAD NO OPPORTUNITY TO DEFEND AGAINST THAT CAUSE AT THE HEARING, NOR WAS
RESPONDENT PUT ON NOTICE THAT IT WOULD BE AN ISSUE THEREAT.
/3/ THE JOINT COUNCIL IS COMPOSED OF CHAPTERS 14 AND 36.
/4/ THE ISSUE AS TO WHETHER RESPONDENT DID, IN FACT, ABUSE THE
OFFICIAL PROCESSES HEREIN IS NOT BEFORE THE UNDERSIGNED. I MAKE NO
FINDING IN THIS REGARD.