[ v06 p713 ]
06:0713(127)CA
The decision of the Authority follows:
6 FLRA No. 127 INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE CENTER Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 99 Charging Party Case No. 2-CA-36 DECISION AND ORDER THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN UNFAIR LABOR PRACTICES UNDER EXECUTIVE ORDER 11491, AS AMENDED, ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE 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 2423.1 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2423.1). 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). PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2423.29) AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS REVIEWED THE RULINGS OF THE JUDGE MADE AT THE HEARING AND FINDS NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS REGARDING THE OCTOBER 18, AND NOVEMBER 17, 1978 MEETINGS. HOWEVER, CONTRARY TO THE JUDGE, THE AUTHORITY HAS DETERMINED THAT THE RECORD DOES NOT CONTAIN SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT AN UNFAIR LABOR PRACTICE OCCURRED ON NOVEMBER 16, 1978. THE AUTHORITY NOTES THAT THE GENERAL COUNSEL HAD THE DUTY IN THIS INSTANCE OF PROVING ITS CASE. IN THIS REGARD, THE AUTHORITY FINDS THE UNION REPRESENTATIVE WAS UNABLE TO RECALL THE SUBJECT SHE SOUGHT TO DISCUSS THAT DATE AND MANAGEMENT HAD NO RECOLLECTION OF ANY SUCH MEETING. BASED ON THE EVIDENCE PRESENTED HEREIN THE AUTHORITY CONCLUDES THAT A FINDING OF A VIOLATION OF THE EXECUTIVE ORDER WITH REGARD TO THE NOVEMBER 16, 1978 MEETING IS NOT WARRANTED. ACCORDINGLY, THE AUTHORITY DOES NOT ADOPT THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS IN THAT REGARD. THE SECTION OF THE COMPLAINT REGARDING EVENTS OF THAT DATE IS HEREBY DISMISSED. /1/ ORDER PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2400.2) AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE SERVICE, BROOKHAVEN SERVICE CENTER, SHALL: 1. CEASE AND DESIST FROM: (A) PROHIBITING THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND NTEU, CHAPTER 99 FROM HAVING MORE THAN ONE REPRESENTATIVE PRESENT AT FORMAL DISCUSSIONS AND AT INFORMAL MEETINGS WITH MANAGEMENT OFFICIALS AT THE LEVEL OF BRANCH CHIEF AND ABOVE, OR OTHERWISE CHANGING ESTABLISHED PAST PRACTICES AFFECTING THE WORKING CONDITIONS OF UNIT EMPLOYEES, WITHOUT FIRST NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU, CHAPTER 99, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS EMPLOYEES, AND AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER ON SUCH MATTERS TO THE EXTENT CONSONANT WITH LAW AND REGULATION. (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR COERCING 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) POST AT ITS FACILITY AT THE BROOKHAVEN SERVICE CENTER 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 THE DIRECTOR, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. (B) NOTIFY THE REGIONAL DIRECTOR, REGION II, 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., SEPTEMBER 29, 1981 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY 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 PROHIBIT THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND NTEU, CHAPTER 99 FROM HAVING MORE THAN ONE REPRESENTATIVE PRESENT AT FORMAL DISCUSSIONS AND AT INFORMAL MEETINGS WITH MANAGEMENT OFFICIALS AT THE LEVEL OF BRANCH CHIEF OR ABOVE, OR OTHERWISE CHANGE ESTABLISHED PAST PRACTICES AFFECTING THE WORKING CONDITIONS OF UNIT EMPLOYEES, WITHOUT FIRST NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU, CHAPTER 99, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF OUR EMPLOYEES, AND AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER ON SUCH MATTERS TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS. WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED. (AGENCY OR ACTIVITY) DATED: . . . BY . . . (SIGNATURE) 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 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR, REGION II, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: ROME 241, 26 FEDERAL PLAZA, NEW, NY, 10007, AND WHOSE TELEPHONE NUMBER IS: (212) 264-4934. -------------------- ALJ DECISION FOLLOWS -------------------- ROBERT F. HERMANN, ESQUIRE FOR THE RESPONDENT JAMES E. PETRUCCI, ESQUIRE RONI SCHNITZER, ESQUIRE FOR THE GENERAL COUNSEL PETER M. CONROY, ESQUIRE FOR THE CHARGING PARTY BEFORE: GARVIN LEE OLIVER ADMINISTRATIVE LAW JUDGE DECISION STATEMENT OF THE CASE THIS CASE AROSE AS A RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT DATED JANUARY 31, 1980 FILED BY THE REGIONAL DIRECTOR, REGION 2, FEDERAL LABOR RELATIONS AUTHORITY, NEW YORK, NEW YORK, AGAINST THE INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE CENTER (RESPONDENT). THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED, (THE ORDER) ON OR ABOUT OCTOBER 18, NOVEMBER 16 AND NOVEMBER 17, 1978, BY REFUSING TO PERMIT MORE THAN ONE REPRESENTATIVE OF THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND NTEU, CHAPTER 99 (CHARGING PARTY OR UNION) TO BE PRESENT AT FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER, AND AT INFORMAL MEETINGS WITH MANAGEMENT OFFICIALS AT THE LEVEL OF BRANCH CHIEF OR ABOVE. THE COMPLAINT ALLEGED THAT SUCH CONDUCT CONSTITUTED A UNILATERAL CHANGE IN EXISTING PRACTICES WITHOUT NOTICE TO THE CHARGING PARTY. RESPONDENT DENIED THE ALLEGATIONS. A HEARING WAS HELD IN THIS MATTER IN HOLTSVILLE, NEW YORK. THE RESPONDENT, GENERAL COUNSEL AND CHARGING PARTY WERE REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, AND FILE POST-HEARING BRIEFS. BASED ON 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 OF LAW, AND RECOMMENDATIONS. FINDINGS OF FACT 1. THE NATIONAL TREASURY EMPLOYEES UNION AND THE INTERNAL REVENUE SERVICE WERE, AT ALL RELEVANT TIMES, PARTIES TO A COLLECTIVE BARGAINING AGREEMENT COVERING A CONSOLIDATED BARGAINING UNIT WHICH INCLUDES EMPLOYEES OF THE BROOKHAVEN SERVICE CENTER. (JOINT EX. 1). THE BROOKHAVEN SERVICE CENTER IS HEADED BY A DIRECTOR, ASSISTED BY AN ASSISTANT DIRECTOR. OTHER MANAGEMENT REPRESENTATIVES, IN DESCENDING ORDER UNDER THE DIRECTOR, ARE DIVISION CHIEFS, BRANCH CHIEFS, SECTION CHIEFS, AND UNIT SUPERVISORS. (TR. 280). 2. THE MULTI-CENTER AGREEMENT (MCA), WHICH BECAME EFFECTIVE IN OCTOBER 1975, CONTAINS A NUMBER OF PROVISIONS RELEVANT TO THE UTILIZATION OF OFFICIAL TIME FOR REPRESENTATIONAL PURPOSES, THE RIGHT OF THE UNION TO BE PRESENT AT CERTAIN MEETING, AND THE NUMBER OF PARTICIPANTS WHO WILL RECEIVE NOTICE OF AND ATTEND CERTAIN MEETINGS WITH MANAGEMENT. SEE ARTICLES 3, 5, 30, 31, 32, 33, AND 36. (JOINT EX. 1). ARTICLE 36, "LABOR-MANAGEMENT RELATIONS COMMITTEE," AND ARTICLE 33, "GRIEVANCE PROCEDURE," OF THE MCA SPECIFY THE UNION'S RIGHT TO DESIGNATE MORE THAN ONE REPRESENTATIVE TO ATTEND CERTAIN MEETINGS WITH RESPONDENT ON OFFICIAL TIME, AND ARTICLE 32, SECTION I.D. ALLOWS AN EMPLOYEE, UPON REQUEST, TO BE ACCOMPANIED BY ONE UNION REPRESENTATIVE DURING DISCUSSIONS OF POTENTIAL ADVERSE ACTIONS WITH MANAGEMENT. 3. WITHIN SIX MONTHS OF KENNETH HART TAKING OFFICE AS PRESIDENT OF NTEU, CHAPTER 99 IN OCTOBER, 1975, MR. HART HAD A DISCUSSION WITH CALVIN LITWACK, CHIEF OF THE EMPLOYEE RELATIONS SECTION. MR. HART CLAIMED THAT THE FOLLOWING ARTICLE 3B OF THE MCA WOULD PERMIT AN AREA STEWARD, AS WELL AS THE CHIEF STEWARD OR CHAPTER PRESIDENT, TO ATTEND MEETINGS CALLED BY, OR HELD WITH, A BRANCH CHIEF OR ABOVE: ARTICLE 3B THE PARTIES AGREE THAT NOTICE TO THE UNION OF A FORMAL DISCUSSION WILL BE SUFFICIENT IF PROVIDED TO A STEWARD APPOINTED TO REPRESENT EMPLOYEE(S) INVOLVED IN THE DISCUSSION; PROVIDED, HOWEVER, THAT IF SUCH DISCUSSION IS CALLED BY A BRANCH CHIEF OR AN OFFICIAL OF HIGHER RANK, NOTICE OF THE DISCUSSION WILL BE PROVIDED TO THE CHIEF STEWARD OR CHAPTER PRESIDENT. MR. LITWACK DISAGREED AND POINTED TO ARTICLE 5, SECTION 2D, AS FOLLOWS, WHICH HE CONTENDED, SET A LIMITATION OF ONE STEWARD TO ATTEND SUCH A MEETING: ARTICLE 5, SECTION 2D A UNION STEWARD, CHIEF STEWARD OR CHAPTER PRESIDENT WILL RECEIVE OFFICIAL TIME TO BE PRESENT AT FORMAL OR INFORMAL DISCUSSIONS WITH THE EMPLOYER CONCERNING PERSONNEL POLICIES, PRACTICES AND MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT, OR TO CARRY OUT THE GOALS AND OBJECTIVES OF EXECUTIVE ORDER 11491, AS AMENDED . . . (TR. 307-308, 335; JOINT EX. 1). 4. THIS TOPIC CAME UP SUBSEQUENTLY BETWEEN MR. LITWACK AND MR. HART AND BETWEEN MR. LITWACK AND ANNE TAMNEY, CHIEF STEWARD. (TR. 308). MR. LITWACK ALSO COMMUNICATED HIS VIEW TO JUDY OSLAGER, WHO SERVED AS VICE PRESIDENT AND CHIEF STEWARD FROM APPROXIMATELY JUNE 1977 TO JUNE 1978 AND AS CHAPTER PRESIDENT SINCE JUNE 1, 1978. (TR. 88-89; 171). 5. VICTOR A. SMITH, CHIEF, PERSONNEL BRANCH, ALSO INTERPRETS THE MCA TO PROVIDE FOR ONE UNION REPRESENTATIVE TO ATTEND MEETINGS WITH MANAGEMENT, EXCEPT IN THE INSTANCES SPELLED OUT IN ARTICLE 33 AND 36. (TR. 296-297). HE HAS ADVISED THE UNION OF HIS INTERPRETATION OF THE CONTRACT (TR. 54, 171, 282), AND HAS DECLINED TO MEET WITH MULTIPLE UNION REPRESENTATIVES WHENEVER HE FELT, OR ASCERTAINED, THAT THE TOPIC TO BE DISCUSSED DID NOT REQUIRE THE ATTENDANCE OF MULTIPLE REPRESENTATIVES. (TR. 282-284, 300, 302, 304-305). HE DEALT WITH THE ISSUE ON A CASE-BY-CASE BASIS. DURING HIS MEETINGS OVER THE YEARS HE HAS ACTUALLY MET ON MORE OCCASIONS WITH MORE THAN ONE UNION REPRESENTATIVE, AFTER DECIDING, OR ASCERTAINING, THAT ADDITIONAL UNION REPRESENTATION WOULD HELP RESOLVE A PROBLEM. HIS DECISION TO ALLOW MORE THAN ONE UNION REPRESENTATIVE WAS DISCUSSED ON OCCASION, ONCE OR TWICE, BUT NOT IN EVERY INSTANCE. (TR. 300-305). 6. SMITH HAS ADVISED MANAGERS OF HIS INTERPRETATION OF THE CONTRACT, AND THAT IT WAS IN MANAGER'S DISCRETION WHETHER OR NOT TO ALLOW MORE THAN ONE UNION REPRESENTATIVE TO BE PRESENT. SMITH'S ADVICE IS ADVISORY. HE DOES NOT HAVE LINE AUTHORITY OVER THE MANAGERS. (TR. 296-297). IF HIS SECTION BELIEVES THAT A VIOLATION OF LAW OR REGULATION IS OCCURRING, IT WOULD BE NECESSARY TO GO THROUGH THE CHAIN OF COMMAND TO HAVE IT STRAIGHTENED OUT. (TR. 296-297). SMITH ACKNOWLEDGED THAT HE WAS A "STRICT CONSTRUCTIONALIST" AND A "HARD LINER" WHEN IT CAME TO CONSTRUING THE CONTRACT AS TO THE NUMBER OF UNION REPRESENTATIVES HE WOULD SEE AT MEETINGS; THAT MOST OF THE OTHER MANAGERS WERE NOT; AND THAT, IN MANY INSTANCES, THERE WERE MANAGERS WHO ALLOWED MORE THAN ONE UNION REPRESENTATIVE TO ATTEND MEETINGS. (TR. 282, 299). 7. HENRY P. SEUFERT WAS DIRECTOR OF THE BROOKHAVEN SERVICE CENTER FROM AUGUST 5, 1973 TO NOVEMBER 4, 1977. HE MET ON NUMEROUS OCCASIONS WITH UNION REPRESENTATIVES TO DISCUSS LABOR RELATIONS. HE NEVER RAISED A QUESTION CONCERNING HOW MANY UNION REPRESENTATIVES COULD BE PRESENT FOR SUCH MEETINGS, NOR DID THE UNION. THE QUESTION OF WHOSE DECISION IT WAS, OR WHETHER THE UNION HAD TO REQUEST PERMISSION TO BRING MORE THAN ONE REPRESENTATIVE WAS NEVER RAISED. HE TESTIFIED, "WHOEVER THEY BROUGHT IS WHOEVER I MET WITH." MR. SEUFERT ALSO DID NOT KNOW OF ANY RESTRICTION PLACED BY HIS SUBORDINATES ON HOW MANY PERSONS THE UNION COULD BRING, OR NOT BRING, TO A MEETING. (TR. 30-33). 8. KENNETH HART SERVED AS CHAPTER PRESIDENT OF THE UNION AT THE SERVICE CENTER FROM OCTOBER 1975 TO JUNE 1978. DURING THIS PERIOD HART INSTRUCTED THE STEWARDS THAT THEY SHOULD NOT MEET WITH A BRANCH CHIEF, OR ANOTHER MANAGEMENT REPRESENTATIVE OF HIGHER RANK ALONE, BUT SHOULD BE ACCOMPANIED AT SUCH MEETINGS BY A UNION OFFICIAL, OR ANOTHER STEWARD. JUDY OSLAGER, WHO SUCCEEDED MR. HART AS CHAPTER PRESIDENT, CONTINUED THIS POLICY AND PRACTICE. BOTH TESTIFIED THAT, IN SUCH CAPACITY, THEY DID, ON OCCASION, MEET WITH SUCH OFFICIALS ALONE, BUT IT WAS THE UNION'S DECISION WHETHER OR NOT TO DO SO. (TR. 36-38; 90, 92, 106). OTHERWISE, THEY ADHERED TO THE POLICY AND PRACTICE AND, PRIOR TO OCTOBER 18, 1978, THE RECORD SHOWS THAT NO SPECIFIC SECTION CHIEF, EXCEPT FOR MR. SMITH, REFUSED TO MEET WITH MORE THAN ONE UNION REPRESENTATIVE AT THE MEETINGS IN ISSUE. /2/ 9. IN 1977 THE UNION SUBMITTED THE TOPIC OF "LIMIT ON UNION PERSONNEL AT INFORMATION SHARING MEETINGS" AS AN AGENDA ITEM FOR A LABOR MANAGEMENT RELATIONS COMMITTEE MEETING, BECAUSE A QUESTION HAD BEEN RAISED ABOUT THE ATTENDANCE OF A STEWARD AT A MEETING, AND THE UNION WANTED TO CLARIFY ITS POLICY. (TR. 71-72; 286; RESPONDENT'S EX. 5.) THE ITEM WAS DISCUSSED AT THE JUNE 30, 1977 MEETING. (TR. 72, 285). THE RECORD DOES NOT REFLECT THE SUBSTANCE OF THE DISCUSSION; HOWEVER, THE MINUTES PREPARED BY MANAGEMENT STATED: MANAGEMENT ASKED NTEU TO TAKE A HARD LOOK AT THEIR USE OF ADMINISTRATIVE TIME AND REGULATE IT TO THE BEST OF ITS ABILITY. (FREQUENTLY, MORE REPRESENTATIVES THAN ARE NEEDED ATTEND INFORMATION MEETINGS.) FURTHER, MANAGEMENT STATED THAT IF THERE IS DISAGREEMENT ON HOW MANY WILL ATTEND INFORMATION SHARING MEETINGS (RESULTING FROM CHANGE IN PERSONNEL POLICIES, PRACTICES, PROCEDURES) THE MATTER TO BE DISCUSSED CAN BE BROUGHT UP AT LMRC MEETINGS AS AN AGENDA ITEM. 10. AT OTHER TIMES IN 1977 AND 1978 RESPONDENT ADVISED THE UNION THAT EMPLOYEE USE OF OFFICIAL TIME MUST BE REASONABLE AND ACCOUNTED FOR UNDER THE CONTRACT. (RESPONDENT'S EX. 3, 6, 8, AND 10; TR. 292). 11. UPON ASSUMING THE POSITION OF CHAPTER PRESIDENT ON JUNE 2, 1978, MS. OSLAGER MET WITH THEN DIRECTOR THOMAS LAYCOCK ON JUNE 2, 1978. MS. OSLAGER WAS ACCOMPANIED BY JOAN SHERIDAN, VICE PRESIDENT AND CHIEF STEWARD OF THE UNION. (TR. 91, 251). MR. LAYCOCK STATED THAT THE CONTRACT WOULD BE HIS GUIDE AND RULE HIS ACTIONS; THAT, AS NEW UNION REPRESENTATIVES, THEY WOULD GET NOTHING WHICH WAS NOT SPELLED OUT IN THE CONTRACT. (TR. 92, 251). NOTWITHSTANDING THE FOREGOING, IN THE PERIOD PRIOR TO OCTOBER 18, 1978, MS. OSLAGER WAS NEVER DENIED THE RIGHT TO HAVE MORE THAN ONE UNION REPRESENTATIVE PRESENT AT MEETINGS WITH BRANCH CHIEFS OR ABOVE. (TR. 93). 12. IN OCTOBER 1978 DIRECTOR LAYCOCK LEARNED THAT SEVERAL BARGAINING UNIT EMPLOYEES WERE DISSATISFIED WITH AN ARTICLE WHICH HAD APPEARED IN THE UNION NEWSPAPER, AND WISHED TO SPEAK TO HIM CONCERNING THE PUBLICATION OF A REBUTTAL IN THE SERVICE CENTER NEWSPAPER. LAYCOCK SOUGHT ADVICE FROM THE CENTER'S LABOR RELATIONS SECTION. (TR. 239-240). SECTION CHIEF LITWACK ADVISED HIM THAT IT WOULD BE IMPROPER FOR THE CENTER TO PUBLISH THE REBUTTAL, AND IF LAYCOCK WERE TO MEET WITH THE EMPLOYEES, THE MEETING WOULD LIKELY CONSTITUTE A FORMAL DISCUSSION UNDER SECTION 10(E) OF EXECUTIVE ORDER 11491. LITWACK FURTHER ADVISED THAT, UNDER THE EXECUTIVE ORDER AND THE MCA, ONE UNION REPRESENTATIVE SHOULD BE INVITED TO ATTEND ANY SUCH MEETING. (TR. 320-321). 13. LAYCOCK TOOK LITWACK'S ADVICE. (TR. 241). HE ADVISED THE EMPLOYEES IT WOULD NOT BE POSSIBLE TO PUBLISH THEIR REBUTTAL, BUT OFFERED TO MEET WITH THEM. (TR. 240). WHEN THE EMPLOYEES REQUESTED SUCH A MEETING, LAYCOCK NOTIFIED UNION CHAPTER PRESIDENT OSLAGER AND INVITED HER TO ATTEND THE MEETING, WHICH WAS SCHEDULED FOR OCTOBER 18, 1978. (TR. 94). 14. OSLAGER ARRIVED FOR THE MEETING ACCOMPANIED BY CHAPTER VICE-PRESIDENT AND CHIEF STEWARD JOAN SHERIDAN. (TR. 94). LAYCOCK, BASED ON THE INTERPRETATION OF THE MCA FURNISHED HIM BY LITWACK, OBJECTED TO BOTH OSLAGER AND SHERIDAN BEING PRESENT. (TR. 241-242). LAYCOCK WAS NOT AWARE OF WHAT THE PRACTICE WAS, OR WHETHER THIS WAS A CHANGE OR NOT. (TR. 244). WHEN LAYCOCK RAISED THE OBJECTION, OSLAGER DID NOT VOICE DISAGREEMENT; SHE DID NOT ASSERT A RIGHT TO HAVE A SECOND UNION REPRESENTATIVE PRESENT. (TR. 158; 242). RATHER, OSLAGER ADVISED SHERIDAN TO LEAVE AND PROCEEDED TO ATTEND THE MEETING HERSELF. (TR. 206). NO GRIEVANCE WAS FILED AND NO BARGAINING DEMAND WAS EVER MADE. (TR. 158). IN ADDITION TO LAYCOCK AND OSLAGER, THREE BARGAINING UNIT EMPLOYEES ATTENDED THE MEETING. (TR. 242). AT THE MEETING, THE THREE EMPLOYEES VOICED THEIR DISSATISFACTION WITH THE UNION'S HANDLING OF A GRIEVANCE. (TR. 242-243). 15. ON NOVEMBER 16, 1978 OSLAGER SOUGHT AN INFORMAL MEETING WITH DIRECTOR LAYCOCK ON SOME SUBJECT. SHERIDAN ACCOMPANIED OSLAGER TO LAYCOCK'S OFFICE. LAYCOCK DECLINED TO MEET WITH BOTH OSLAGER AND SHERIDAN. (TR. 95, 207). OSLAGER VOICED NO OBJECTION, SHERIDAN LEFT, AND OSLAGER PROCEEDED TO MEET WITH LAYCOCK. (TR. 94-96). OSLAGER WAS UNABLE TO RECALL THE SUBJECT WHICH SHE SOUGHT TO DISCUSS WITH LAYCOCK. (TR. 96). LAYCOCK HAS NO RECOLLECTION OF ANY NOVEMBER 16, 1978 MEETING WITH OSLAGER. (TR. 244). 16. ON NOVEMBER 17, 1978, OSLAGER WAS INVITED TO MEET WITH ASSISTANT DIRECTOR CHARLES COPELAND CONCERNING THE COMBINED FEDERAL CAMPAIGN. OSLAGER ARRIVED AT COPELAND'S OFFICE ACCOMPANIED BY SHERIDAN. (TR. 96). COPELAND ADVISED OSLAGER AND SHERIDAN THAT HE WOULD MEET WITH ONLY ONE OF THEM AT THAT TYPE OF MEETING. NEITHER OSLAGER NOR SHERIDAN RAISED ANY OBJECTION. (TR. 96, 178, 207). SHERIDAN LEFT, AND OSLAGER PROCEEDED TO MEET WITH COPELAND. COPELAND ASKED OSLAGER IF THE UNION WOULD APPOINT A CO-CHAIRPERSON AND SUPPORT THE COMBINED FEDERAL CAMPAIGN, AS IT HAD IN THE PAST. (TR. 176). OSLAGER SUBSEQUENTLY NOTIFIED COPELAND THAT THE UNION WOULD DO SO AND PROVIDED HIM THE NAME OF THE UNION CO-CHAIRPERSON. (TR. 179). 17. OVER THE PERIOD FROM 1975 THROUGH NOVEMBER, 1978, AND CONTINUING UP TO THE DATE OF THE HEARING, THERE WERE INNUMERABLE FORMAL AND INFORMAL MEETINGS OF ALL KINDS AT ALL LEVELS BETWEEN REPRESENTATIVES OF SERVICE CENTER MANAGEMENT AND REPRESENTATIVES OF THE UNION. THE NUMBER OF PARTICIPANTS OR ATTENDEES AT THESE MEETINGS VARIED. MANY INVOLVED A SINGLE MANAGEMENT OFFICIAL AND A SINGLE UNION REPRESENTATIVE. OTHERS INVOLVED A SINGLE MANAGEMENT OFFICIAL AND TWO OR MORE UNION REPRESENTATIVES, OR VICE VERSA. STILL OTHER MEETINGS INVOLVED TWO OR MORE MANAGEMENT OFFICIAL AND TWO OR MORE UNION UNION REPRESENTATIVES. THERE WERE MORE MEETINGS WITH MANAGEMENT OFFICIALS AT THE LEVEL OF BRANCH CHIEF OR ABOVE AT WHICH MORE THAN ONE UNION REPRESENTATIVE WAS PRESENT, WITHOUT ANY OBJECTION BEING VOICED, THAN THERE WERE WITH ONLY ONE UNION REPRESENTATIVE. (TR. 32, 37-38, 44-46, 54-55, 106, 154, 174-175, 191-196, 204-206, 218-219, 274, 284, 302; GENERAL COUNSEL'S EX. 3). 18. SINCE NOVEMBER 1978 THE DIRECTOR OF THE SERVICE CENTER HAS MET ON SOME OCCASIONS WITH ONE UNION REPRESENTATIVE AND ON OTHER OCCASIONS WITH MORE THAN ONE UNION REPRESENTATIVE. DIRECTOR LAYCOCK HAS STATED TO THE UNION REPRESENTATIVES ON ONE OR MORE OCCASIONS DURING THIS PERIOD THAT HE WOULD MEET WITH ONLY ONE UNION REPRESENTATIVE UNDER THE CONTRACT UNLESS THERE IS A GOOD AND SUFFICIENT REASON TO SHOW THAT ADDITIONAL UNION REPRESENTATIVES WOULD MAKE A CONTRIBUTION TO THE MEETING. THE DIRECTOR CLAIMED HE HAS BEEN CONSISTENT IN APPLYING THIS POLICY SINCE THE OCTOBER 18, 1978 MEETING. (TR. 253-254). BOTH HE AND MR. COPELAND HAVE, HOWEVER, MET WITH MORE THAN ONE UNION REPRESENTATIVE SINCE NOVEMBER 1978 AND HAVE VOICED NO OBJECTION TO THE UNION CONCERNING THE REPRESENTATIVES BEING PRESENT. (TR. 193). 19. DURING ONGOING NEGOTIATIONS FOR A SUCCESSOR TO THE MCA, THE UNION SUBMITTED PROPOSED CHANGES IN ARTICLE 5, SECTION 2 ON MAY 17, 1978. THE UNION'S PROPOSED AMENDMENTS PROVIDED, AMONG OTHER THINGS, "A UNION STEWARD, CHIEF STEWARD AND CHAPTER PRESIDENT WILL RECEIVE OFFICIAL TIME TO BE PRESENT AT FORMAL OR INFORMAL DISCUSSIONS WITH THE EMPLOYER . . . ", AND "THE CHIEF STEWARD AND CHAPTER PRESIDENT WILL RECEIVE ADMINISTRATIVE TIME TO BE PRESENT AT FORMAL AND INFORMAL MEETINGS NECESSARY TO CARRY OUT THE GOALS OF EXECUTIVE ORDER 11491, AS AMENDED." (RESPONDENT'S EX. 11, EMPHASIS ADDED). THE UNION SUBSEQUENTLY WITHDREW THE PROPOSAL. (TR. 198). PROCEDURAL FACTS 20. IN JANUARY 25, 1979, THE UNION CHARGED THE SERVICE CENTER WITH A VIOLATION OF SECTION 19(A)(1) AND (6) OF THE EXECUTIVE ORDER. (GENERAL COUNSEL'S EX. 1(R)). THE CHARGE ALLEGED THAT THE SERVICE CENTER UNILATERALLY CHANGED PERSONNEL POLICIES AND PRACTICES WHEN, "IN MEETINGS ON OCTOBER 18, 1978, NOVEMBER 16, 1978, AND NOVEMBER 17, 1978 YOU GRANTED OFFICIAL TIME TO ONLY ONE UNION OFFICIAL. THE PARTIES MET ON FEBRUARY 12, 1979 TO ATTEMPT TO INFORMALLY RESOLVE THE CHARGE. (TR. 110). 21. ON APRIL 24, 1979, THE UNION FILED AN UNDATED FORMAL CHARGE WITH REGION II OF THE AUTHORITY. (GENERAL COUNSEL EX. 1(A)). THE CHARGE REPEATED THE ALLEGATIONS RAISED IN THE INFORMAL CHARGE, BUT DELETED ANY ALLEGATION CONCERNING A CLAIMED NOVEMBER 16, 1978 MEETING. ON MAY 25, 1979, THE UNION FILED AN AMENDED CHARGE, DATED MAY 23, 1979. (GENERAL COUNSEL EX. 1(C)). AND, ON JANUARY 15, 1980, THE UNION FILED A SECOND AMENDED CHARGE, DATED JANUARY 9, 1980. (GENERAL COUNSEL EX. 1(E)). NEITHER OF THE AMENDED CHARGES RAISED AN ALLEGATION CONCERNING A NOVEMBER 16, 1978 MEETING. 22. ON JANUARY 31, 1980, THE REGIONAL DIRECTOR, REGION II, ISSUED A COMPLAINT ALLEGING VIOLATIONS OF SECTION 19(A)(1) AND (6) OF THE EXECUTIVE ORDER ARISING OUT OF ALLEGED ACTIONS TAKEN ON OCTOBER 18, 1978, NOVEMBER 16, 1978 AND NOVEMBER 17, 1978. (GENERAL COUNSEL EX. 1(G)). RESPONDENTS ANSWERED THE COMPLAINT, MOVING FOR ITS DISMISSAL ON VARIOUS GROUNDS. (GENERAL COUNSEL EX. 1(I), 1(J), 1(T)). DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS AUTHORITY OF GENERAL COUNSEL RESPONDENT CONTENDS THAT THE REGIONAL DIRECTOR WAS WITHOUT AUTHORITY TO ISSUE THE COMPLAINT, AND THE GENERAL COUNSEL WAS WITHOUT AUTHORITY TO PROSECUTE THE COMPLAINT. RESPONDENT ALLEGES THAT THE CASE IS GOVERNED SUBSTANTIVELY AND PROCEDURALLY BY EXECUTIVE ORDER 11491, AS AMENDED, AND THE ASSISTANT SECRETARY'S REGULATION ISSUED THEREUNDER. SEE 4 FED.REG. 5(1979). THE AUTHORITY HAS CONCLUDED THAT IT DOES HAVE THE POWER TO PROCESS, THROUGH THE MEDIUM OF THE GENERAL COUNSEL, EXECUTIVE ORDER CASES FILED AFTER JANUARY 11, 1979. SEE 44 FED.REG. 14634(1979); 44 FED.REG. 44740(1979); 5 C.F.R. 2423.1(1980). I AM BOUND BY THE RULES AND REGULATIONS OF THE AUTHORITY. SEE 5 C.F.R. 2423.19(1980) AND NATIONAL LABOR RELATIONS BOARD, REGION I, BOSTON MASSACHUSETTS AND RONALD LASKY, CASE NO. 1-CA-28, DECISION OF ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG (MAY 14, 1980). THE NOVEMBER 16, 1978 MEETING RESPONDENT ALSO CONTENDS THAT ALLEGATIONS ARISING OUT OF A CLAIMED NOVEMBER 16, 1978 MEETING ARE NOT PROPERLY PART OF THE COMPLAINT OR THE PROCEEDINGS, BECAUSE THE UNION DID NOT RAISE ANY ALLEGATION CONCERNING SUCH A MEETING IN THE APRIL 24, 1979 CHARGE WHICH IT FILED WITH THE AUTHORITY. THIS CONTENTION IS WITHOUT MERIT. ON JANUARY 25, 1979, SUBSEQUENT TO THE ISSUANCE OF THE TRANSITION RULES AND REGULATIONS OF THE AUTHORITY, 44 FED.REG. 5(1979), BUT PRIOR TO THE POLICY STATEMENT OF MARCH 7, 1979, 44 FED.REG. 14634(1979), THE UNION FILED A CHARGE WITH RESPONDENT. THIS CHARGE CLEARLY ALLEGED THAT ON NOVEMBER 16, 1978, AND ON TWO OTHER DATES, RESPONDENT REFUSED TO MEET WITH MORE THAN ONE UNION REPRESENTATIVE. THIS DOCUMENT, FILED PURSUANT TO THE THEN-EXISTING REQUIREMENTS OF THE AUTHORITY, PUT RESPONDENT ON FULL NOTICE THAT UNLAWFUL CONDUCT WAS ALLEGED TO HAVE OCCURRED ON THAT DATE. ALTHOUGH THIS DATE WAS NOT AGAIN ALLEGED IN THE UNION'S APRIL 24, 1979 CHARGE FILED WITH THE AUTHORITY, THIS IS NOT FATAL, AS THE GENERAL COUNSEL'S COMPLAINT OF JANUARY 31, 1980 SPECIFIED THE NOVEMBER 16, 1978 DATE, AS WELL AS THE EARLIER DATE OF OCTOBER 18, 1978 AND THE LATER DATE OF NOVEMBER 17, 1978 AS DATES "ON OR ABOUT" WHICH RESPONDENT UNILATERALLY CHANGED EXISTING PRACTICES. IT IS THE GENERAL COUNSEL'S COMPLAINT, FOLLOWING THE GENERAL COUNSEL'S INVESTIGATION OF THE CHARGES, WHICH ESTABLISHED THE ISSUES FOR THE HEARING UNDER THE AUTHORITY'S REGULATIONS. THUS, ALLEGATIONS AND EVIDENCE CONCERNING THE NOVEMBER 16, 1978 MEETING WERE NOT BEYOND THE PROPER SCOPE OF THE COMPLAINT, OR OF THE HEARING. THE OCTOBER 18, 1978 MEETING RESPONDENT FURTHER CONTENDS THAT CONSIDERATION OF THE OCTOBER 18, 1978 MEETING IS TIME BARRED UNDER THE STATUTE, BECAUSE IT OCCURRED MORE THAN SIX MONTHS PRIOR TO THE APRIL 24, 1979 DATE ON WHICH A FORMAL CHARGE WAS FILED WITH THE AUTHORITY. 5 U.S.C. 7118(A)(4)(A). RESPONDENT ARGUES THAT "IF THE EXECUTIVE ORDER RULES AND REGULATIONS ARE TO BE DISREGARDED FOR SOME PURPOSES, THEY MUST BE DISREGARDED FOR ALL PURPOSES." THE UNION, ACTING PURSUANT TO THE REQUIREMENTS SET FORTH IN THE TRANSITION RULES AND REGULATIONS, 44 FED.REG. 5(1979), WHICH ADOPTED THE RULES AND REGULATIONS OF THE ASSISTANT SECRETARY, 29 C.F.R. PART 203, PROPERLY FILED A PRECOMPLAINT CHARGE WITH THE RESPONDENT ON JANUARY 25, 1979. THE TRANSITION RULES AND REGULATIONS ADOPTED THE THEN EXISTING RULES AND REGULATIONS OF THE ASSISTANT SECRETARY WITH RESPECT TO THE TIME LIMITS FOR FILING UNFAIR LABOR PRACTICE CHARGES AND COMPLAINTS UNDER EXECUTIVE ORDER 11491, AS AMENDED. THE ASSISTANT SECRETARY'S RULES AND REGULATIONS PROVIDED THAT CHARGES OF UNFAIR LABOR PRACTICES WERE TO BE FILED WITH A RESPONDENT WITHIN SIX MONTHS OF THE OCCURRENCE. FAILING RESOLUTION, COMPLAINTS WERE TO BE FILED WITHIN SIXTY DAYS OF RESPONDENT'S WRITTEN FINAL DECISION. IN NO EVENT WERE COMPLAINTS ACTIONABLE IF FILED OVER NINE MONTHS AFTER THE OCCURRENCE OF THE ALLEGED UNFAIR LABOR PRACTICE. THE PARTIES MET ON FEBRUARY 12, 1979. THE RECORD DOES NOT CONTAIN A WRITTEN FINAL DECISION OF RESPONDENT. ON MARCH 7, 1979, THE AUTHORITY ISSUED A NOTICE WHEREIN IT DID AWAY WITH THE PRACTICE OF REQUIRING THE FILING OF A CHARGE WITH RESPONDENT PRIOR TO THE FILING OF A FORMAL CHARGE OR COMPLAINT WITH THE AUTHORITY. THE NOTICE, HOWEVER, WAS SILENT WITH RESPECT TO THE NINE MONTH PERIOD ALLOWED FOR THE PERFECTION OF A COMPLAINT UNDER THE EXECUTIVE ORDER. 44 FED.REG. 14634(1979). THE UNION THEN FILED ITS FORMAL CHARGE WITH THE AUTHORITY ON APRIL 24, 1979. INASMUCH, AS UNION'S FORMAL CHARGE WAS FILED WITHIN NINE MONTHS OF THE OCCURRENCE, AND NO FINAL WRITTEN DECISION OF THE RESPONDENT APPEARS IN THE RECORD WHICH WOULD HAVE TRIGGERED AN EARLIER FILING DATE, I FIND THAT THE CHARGE CONCERNING THE OCTOBER 18, 1978 MEETING WAS TIMELY FILED UNDER THE APPLICABLE REGULATIONS. NATIONAL LABOR RELATIONS BOARD, REGION I, BOSTON, MASSACHUSETTS, SUPRA. QUESTION OF DEFERRAL TO PARTIES' CONTRACTUAL GRIEVANCE-ARBITRATION PROCEDURE RESPONDENT CONTENDS THAT THIS CASE CONCERNS ITS ALLEGED REFUSAL TO PERMIT MULTIPLE UNION REPRESENTATIVES TO ATTEND CERTAIN MEETINGS ON OFFICIAL TIME, AND AS THE RIGHT TO OFFICIAL TIME CAN ARISE ONLY PURSUANT TO A NEGOTIATED AGREEMENT, THE MATTER IS NOT APPROPRIATELY RAISED AS AN UNFAIR LABOR PRACTICE, BUT SHOULD BE DEFERRED TO THE CONTRACTUAL GRIEVANCE-ARBITRATION MACHINERY. IF THIS CASE INVOLVED ESSENTIALLY AN INTERPRETATION OF THE NEGOTIATED AGREEMENT IN RELATION TO OFFICIAL TIME, RESPONDENT WOULD BE CORRECT. SEE DEPARTMENT OF THE AIR FORCE, BASE PROCUREMENT OFFICE, VANDENBURG AIR FORCE BASE, CALIFORNIA, FLRC NO. 75A-25, 4 FLRC 587(1976); DEPARTMENT OF THE NAVY, NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, A/SLMR NO. 1115, 8 A/SLMR 996(1978); INTERNAL REVENUE SERVICE, BURMINGHAM DISTRICT AND NATIONAL TREASURY EMPLOYEES UNION, LOCAL CHAPTER 12 (ARBITRATOR DROTNING, JUNE 8, 1978). BUT WHILE THE UNION'S ORIGINAL AND AMENDED CHARGES OF JANUARY 25, 1979, APRIL 24, 1979, MAY 25, 1979, AND JANUARY 1, 1980 ALL ALLEGED THAT WHAT CONSTITUTED THE UNILATERAL CHANGE OF PRACTICES ON CERTAIN DATES WAS RESPONDENT'S GRANTING "OFFICIAL TIME TO ONLY ONE UNION OFFICIAL," THE GENERAL COUNSEL'S COMPLAINT, ISSUED AFTER INVESTIGATION OF THE CHARGE, DID NOT MENTION OFFICIAL TIME. RATHER, THE GENERAL COUNSEL ALLEGED THAT WHAT CONSTITUTED THE UNILATERAL CHANGE IN EXISTING PRACTICES ON THESE DATES WAS RESPONDENT'S REFUSAL "TO PERMIT MORE THAN ONE REPRESENTATIVE OF THE CHARGING PARTY TO BE PRESENT AT FORMAL DISCUSSIONS . . . AND AT INFORMAL MEETINGS . . ." (GENERAL COUNSEL'S EX. 1(R), 1(A), 1(C), 1(E), AND 1(G). THE DETERMINATION OF WHETHER THERE WAS SUCH A UNILATERAL CHANGE OF PAST PRACTICES IN THIS REGARD DOES NOT REQUIRE AN INTERPRETATION OF THE PARTIES' NEGOTIATED AGREEMENT IN RELATION TO OFFICIAL TIME, COMPARE DEPARTMENT OF THE NAVY, NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, A/SLMR NO. 1115, 8 A/SLMR 996(1978), OR A DETERMINATION OF HOW SUCH REPRESENTATIVES PROPERLY ACCOUNT FOR THEIR TIME AT SUCH MEETINGS, WHETHER BY OFFICIAL TIME, ANNUAL LEAVE, OR ADMINISTRATIVE LEAVE. RATHER, THE INITIAL ISSUE INVOLVES A DETERMINATION OF WHAT THE PRACTICE WAS WITH REGARD TO THE NUMBER OF UNION REPRESENTATIVES WHO MAY BE PRESENT AT MEETINGS WITH MANAGERS AT THE LEVEL OF BRANCH CHIEF OR ABOVE. THE AGREEMENT BETWEEN THE PARTIES DOES NOT SPECIFICALLY ADDRESS THE ISSUE OF THE NUMBER OF UNION REPRESENTATIVES WHO MAY BE PRESENT, APART FROM MEETINGS CONCERNING GRIEVANCES, THE LABOR-MANAGEMENT RELATIONS COMMITTEE, AND POTENTIAL ADVERSE ACTIONS, WHICH ARE NOT IN ISSUE HERE. THUS, THE ALLEGED UNILATERAL INTERPRETATIONS OF THE AGREEMENT, BUT BARGAINING RIGHTS UNDER THE ORDER WHICH ARE PROPERLY DETERMINED IN AN UNFAIR LABOR PRACTICE PROCEEDING. CF. DEPARTMENT OF THE NAVY, NAVAL AIR REWORK FACILITY, ALAMEDA, CALIFORNIA, A/SLMR NO. 1089, 8 A/SLMR 814 AT 816-817(1978). IT IS WELL ESTABLISHED THAT PARTIES MAY ESTABLISH TERMS AND CONDITIONS OF EMPLOYMENT BY PRACTICE, OR OTHER FORM OF TACIT OR INFORMAL AGREEMENT, AND THAT THIS, LIKE OTHER ESTABLISHED TERMS AND CONDITIONS OF EMPLOYMENT MAY NOT BE ALTERED BY EITHER PARTY IN THE ABSENCE OF AGREEMENT OR IMPASSE FOLLOWING GOOD FAITH BARGAINING. DEPARTMENT OF THE NAVY, NAVAL UNDERWATER SYSTEMS CENTER, NEWPORT NAVAL BASE, 3 FLRA NO. 64(1980). PAST PRACTICES GENERALLY INCLUDE ALL CONDITIONS OF EMPLOYMENT NOT SPECIFICALLY COVERED IN THE PARTIES' COLLECTIVE BARGAINING AGREEMENT, WHICH ARE FOLLOWED BY BOTH PARTIES, OR FOLLOWED BY ONE PARTY AND NOT CHALLENGED BY THE OTHER PARTY OVER A PERIOD OF TIME. PAST PRACTICES MAY ALSO INCLUDE THE ACTUAL PRACTICE BEING FOLLOWED, REGARDLESS OF THE CONTRACTUAL AGREEMENT. PAST PRACTICE ISSUES THE PRINCIPLE ISSUES ON THE MERITS ARE WHETHER A PAST PRACTICE EXISTED WHEREBY THE UNION COULD, AT ITS ELECTION, HAVE MORE THAN ONE REPRESENTATIVE PRESENT AT MEETINGS WITH BRANCH CHIEFS AND ABOVE, AND IF SO, WHETHER THE RESPONDENT UNILATERALLY TERMINATED THE PAST PRACTICE WITHOUT PROVIDING THE UNION AN OPPORTUNITY TO BARGAIN CONCERNING WHETHER OR NOT THE PRACTICE SHOULD BE DISCONTINUED. IN ORDER TO CONSTITUTE THE ESTABLISHMENT BY PRACTICE OF A TERM AND CONDITION OF EMPLOYMENT THE PRACTICE MUST BE CONSISTENTLY EXERCISED FOR AN EXTENDED PERIOD OF TIME WITH RESPONDENT'S KNOWLEDGE AND CONSENT. CF. DEPARTMENT OF THE NAVY, NAVAL UNDERWATER SYSTEMS CENTER, NEWPORT NAVAL BASE, 3 FLRA NO. 64(1980). THE RECORD REFLECTS THAT OVER A PERIOD FROM 1975 TO OCTOBER 1978 MANAGEMENT AT THE LEVEL OF BRANCH CHIEF OR ABOVE MET, ON THE MAJORITY OF OCCASIONS, WITH MORE THAN ONE UNION REPRESENTATIVE WITHOUT OBJECTION AND WITHOUT REQUIRING THE UNION TO SHOW TO ITS SATISFACTION GOOD AND SUFFICIENT REASON WHY MORE THAN ONE REPRESENTATIVE WAS NECESSARY. THESE MEETINGS WERE OF SUCH SUFFICIENT NUMBERS AND OVER SUCH A LONG DURATION THAT A REASONABLE PERSON WOULD HAVE RECOGNIZED THIS PRACTICE AND WOULD HAVE EXPECTED IT TO CONTINUE IN THE FUTURE. THERE WERE ALSO MEETINGS DURING THIS PERIOD INVOLVING ONE UNION REPRESENTATIVE AND ONE OR MORE MANAGEMENT OFFICIALS, AND AT LEAST ONE BRANCH CHIEF, VICTOR A. SMITH, DECLINED, ON SOME OCCASIONS, TO MEET WITH MULTIPLE UNION REPRESENTATIVES. HOWEVER, THE NUMBER OF THESE INCIDENTS, IN COMPARISON TO THE LARGE NUMBER OF OTHER MEETINGS INVOLVING MORE THAN ONE UNION REPRESENTATIVE, WOULD BE VIEWED BY A REASONABLE PERSON AS ONE-TIME AFFAIRS. SMITH ACKNOWLEDGED THAT HE DEALT WITH THE ISSUE ON A CASE-BY-CASE BASIS AND DID NOT DISCUSS HIS DECISION TO ALLOW MORE THAN ONE UNION REPRESENTATIVE ON EVERY SUCH OCCASION. RESPONDENT'S KNOWLEDGE AND CONSENT TO THE PRACTICE IS ALSO SHOWN IN THE RECORD. FIRST ARE NUMEROUS INSTANCES OF BRANCH CHIEFS AND ABOVE MEETING WITH MORE THAN ONE UNION REPRESENTATIVE WITHOUT OBJECTION. FORMER DIRECTOR SEUFERT TESTIFIED THAT "WHOEVER THEY BROUGHT IS WHOEVER I MET WITH"; THAT THE QUESTION OF WHETHER THEY HAD TO REQUEST PERMISSION TO BRING MORE THAN ONE WAS NEVER RAISED; AND THAT HE KNEW OF NO RESTRICTION PLACED ON THE NUMBER OF UNION REPRESENTATIVES BY HIS SUBORDINATE MANAGERS. BRANCH CHIEF SMITH APPARENTLY TOOK NO ACTION UNDER DIRECTOR SEUFERT TO ENSURE THAT HIS INTERPRETATION OF THE CONTRACT WAS MADE MANDATORY AMONG THE MANAGERS AND ACKNOWLEDGED THAT, IN MANY INSTANCES, THERE WERE MANAGERS WHO ALLOWED MORE THAN ONE UNION REPRESENTATIVES TO ATTEND. WHEN THE TOPIC OF THE "LIMIT ON UNION PERSONNEL AT INFORMATION SHARING MEETINGS" WAS RAISED BY THE UNION AT A LABOR MANAGEMENT RELATIONS COMMITTEE MEETING IN 1977, THERE IS NO EVIDENCE THAT MANAGEMENT ANNOUNCED A UNIFORM POLICY THAT IS WOULD MEET WITH ONLY ONE UNION REPRESENTATIVE UNLESS GOOD AND SUFFICIENT REASON WERE SHOWN. RATHER, MANAGEMENT RECOGNIZED A UNION ROLE IN DECIDING HOW MANY SHOULD ATTEND. THE MINUTES STATED, IN PART, THAT "FREQUENTLY, MORE REPRESENTATIVES THAN ARE NEEDED ATTEND INFORMATION MEETINGS . . . (I)F THERE IS DISAGREEMENT ON HOW MANY WILL ATTEND . . . THE MATTER TO BE DISCUSSED CAN BE BROUGHT UP AT LMRC MEETINGS. . . . " THE EVIDENCE SHOWS THAT THE WIDESPREAD PRACTICE OF BRANCH MANAGERS AND ABOVE (INCLUDING DIRECTOR LAYCOCK) MEETING WITH MORE THAN ONE UNION REPRESENTATIVE CONTINUED WITHOUT OBJECTION, EXCEPT POSSIBLY FROM MR. SMITH, UNTIL OCTOBER 18, 1978. THE RECORD SHOWS THAT ON OCTOBER 18, 1978, NOVEMBER 16, 1978, AND NOVEMBER 17, 1978 RESPONDENT, THROUGH DIRECTOR LAYCOCK AND ASSISTANT DIRECTOR COPELAND, REFUSED TO PERMIT MORE THAN ONE UNION REPRESENTATIVE TO BE PRESENT AT FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER AND AT INFORMAL MEETINGS. SINCE THAT DATE DIRECTOR LAYCOCK HAS CONSISTENTLY APPLIED THE POLICY THAT HE WILL MEET WITH ONLY ONE UNION REPRESENTATIVE UNLESS HE FINDS THAT THERE IS GOOD AND SUFFICIENT REASON TO SHOW THAT ADDITIONAL UNION REPRESENTATIVES WOULD MAKE A CONTRIBUTION TO THE MEETING. WHILE DIRECTOR LAYCOCK RELIED UPON AN INTERPRETATION OF THE CONTRACT IN MAKING THIS DECISION, HE MADE NO EFFORT TO DETERMINE WHAT THE PRACTICE WAS, OR WHETHER THIS REPRESENTED A CHANGE. MEETINGS HAVE OCCURRED SINCE THE ABOVE DATES IN WHICH MORE THAN ONE UNION REPRESENTATIVE ATTENDED WITHOUT OBJECTION, HOWEVER, IT IS CLEAR THAT MANAGEMENT CONTINUES TO INSIST THAT IT HAS TOTAL DISCRETION IN THIS AREA. THIS CHANGE IN PAST PRACTICE INSTITUTED WITHOUT NOTICE TO THE UNION, OR AFFORDING IT AN OPPORTUNITY TO NEGOTIATE CONSTITUTED A UNILATERAL CHANGE IN ESTABLISHED TERMS AND CONDITIONS OF EMPLOYMENT AND A BREACH OF RESPONDENT'S BARGAINING OBLIGATION IN VIOLATION OF SECTION 19(A)(6) OF THE ORDER AND, DERIVATIVELY, A VIOLATION OF SECTION 19(A)(1) OF THE ORDER. BASED ON THE FOREGOING FINDINGS AND CONCLUSIONS, IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER: ORDER PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE CENTER SHALL: 1. CEASE AND DESIST FROM: (A) PROHIBITING MORE THAN ONE REPRESENTATIVE OF THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND NTEU, CHAPTER 99 FROM BEING PRESENT AT FORMAL DISCUSSIONS AND AT INFORMAL MEETINGS WITH MANAGEMENT OFFICIALS AT THE LEVEL OF BRANCH CHIEF OR ABOVE, OR OTHERWISE CHANGING LIKE MATTERS AFFECTING THE WORKING CONDITIONS OF UNIT EMPLOYEES, WITHOUT FIRST NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 99, AND EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS EMPLOYEES, AND AFFORDING SUCH REPRESENTATIVES THE OPPORTUNITY TO MEET AND CONFER ON SUCH MATTER TO THE EXTENT CONSONANT WITH LAW AND REGULATION. (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR COERCING 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. (C) POST AT ITS FACILITY AT THE BROOKHAVEN SERVICE CENTER COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE DIRECTOR, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. (D) PURSUANT TO 5 C.F.R. SECTION 2423.30 NOTIFY THE REGIONAL DIRECTOR, 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. GARVIN LEE OLIVER ADMINISTRATIVE LAW JUDGE DATED: FEBRUARY 4, 1981 WASHINGTON, D.C. APPENDIX 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 PROHIBIT MORE THAN ONE REPRESENTATIVE OF THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND NTEU, CHAPTER 99 FROM BEING PRESENT AT FORMAL DISCUSSIONS AND AT INFORMAL MEETINGS WITH MANAGEMENT OFFICIALS AT THE LEVEL OF BRANCH CHIEF OR ABOVE, OR OTHERWISE CHANGE LIKE MATTERS AFFECTING THE WORKING CONDITIONS OF UNIT EMPLOYEES, WITHOUT FIRST NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 99, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF OUR EMPLOYEES, AND AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER ON SUCH MATTER TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS. WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED. (AGENCY OR ACTIVITY) DATED: . . . BY . . . (SIGNATURE) 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 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS AND TELEPHONE NUMBER IS: 441 STUART STREET, 9TH FLOOR, BOSTON, MASSACHUSETTS 02116, 617-223-0920. --------------- FOOTNOTES: --------------- /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/ RESPONDENT SHOWED THAT DURING THE PERIOD 1975-1980 THERE WERE SEVERAL MEETINGS INVOLVING DIVISION CHIEFS AND INDIVIDUAL EMPLOYEES ON THE SUBJECT OF THE INDIVIDUAL EMPLOYEE'S TAX DEFICIENCIES. HOWEVER, AS NOTED, THIS MEETING IS SPECIFICALLY COVERED BY ARTICLE 32, SECTION I.D. OF THE MCA (TR. 222; JOINT EX. 1), AND IS DIFFERENT FROM THE MEETINGS IN ISSUE. RESPONDENT SHOWED THAT AT SIX TO EIGHT OF THESE MEETINGS ONLY ONE UNION REPRESENTATIVE WAS PRESENT; THAT ON THREE OR FOUR OCCASIONS THE UNION SOUGHT TO APPEAR WITH TWO REPRESENTATIVES, BUT WAS ADVISED THAT OFFICIAL TIME FOR MORE THAN ONE STEWARD WAS INAPPROPRIATE UNDER THE CONTRACT. SUCH MEETINGS WERE CONDUCTED WITH ONE UNION STEWARD PRESENT. (TR. 272-280; 220; 221-222).