[ v13 p296 ]
13:0296(47)CA
The decision of the Authority follows:
13 FLRA No. 47
UNITED STATES DEPARTMENT OF
THE TREASURY,
INTERNAL REVENUE SERVICE,
DES MOINES DISTRICT
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 4
Charging Party
Case No. 57-CA-20001
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. The General Counsel
and the Charging Party filed exceptions to the Judge's Decision and the
Respondent filed a brief in opposition to the exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions, and recommendation that the complaint be
dismissed.
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 57-CA-20001 be,
and it hereby is, dismissed.
Issued, Washington, D.C., September 30, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 57-CA-20001
Denise Jarrett Dow,
Attorney for Respondent
Judith Ramey,
Attorney for the General Counsel
Federal Labor Relations Authority
Matthew Rennert,
Attorney for the Charging Party
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq. (Supp.
V, 1981), commonly known as the Federal Service Labor-Management
Relations Statute, and hereinafter referred to as the "Statute," and the
rules and regulations issued thereunder and published at 5 CFR 2411 et
seq.
Pursuant to a charge filed on October 2, 1981, by the Charging Party,
the Regional Director of Region V of the Federal Labor Relations
Authority (hereinafter, the "Authority") investigated and, on July 16,
1982, filed the complaint initiating this proceeding.
The complaint alleges that Respondent violated 5 U.S.C. 7116(a)(1)
and (5) /1/ when, on or about July 9, 1981, it unilaterally changed a
past practice of granting the Charging Party's representatives on the
Labor-Management Relations Committee one-half hour of official time
prior to the Committee meetings, during which time they discussed the
scheduled agenda of the Committee meeting and did, thereafter, refuse to
negotiate with the Charging Party concerning the substance, impact, and
implementation of such change. Respondent denies the allegations of
illegal conduct.
A hearing was held in Des Moines, Iowa, on January 11, 1983. The
parties appeared, adduced evidence, and examined witnesses. Briefs were
filed by the General Counsel on March 7, by the Respondent on March 8,
and by the Charging Party on March 10, pursuant to an order extending
briefing time until March 10, for good cause shown. Based upon the
record made in this proceeding, my observation of the demeanor of the
witnesses, and the briefs, I make the following findings of fact,
conclusions of law, and recommended order.
Findings of Fact /2/
1. It is admitted that Respondent has operated and maintained a
District Office in Des Moines, Iowa, during all times material to this
proceeding.
2. It is admitted that the Charging Party (hereinafter collectively
referred to as "NTEU" or the "Union") has been certified as the
exclusive representative of a consolidated unit of Respondent's
employees, including employees in the Des Moines District, during all
times material herein. The Des Moines District covers offices in Des
Moines, Davenport, Cedar Rapids, Waterloo, Mason City, and Sioux City,
Iowa. There are five union stewards at the Des Moines office, and one
at each of the other offices. The current collective bargaining
agreement, covering the national office and all regions and districts,
is known as "NORD"; and it became effective on January 26, 1981. See
Jt 1. Its predecessors were known as "MDAIII" and "MDAII." See R 5 and
6.
3. Since as early as 1969, the Union and Respondent have met in
Labor-Management Relations Committee ("LMRC") meetings, in the Des
Moines District, to discuss labor-management problems and working
conditions. Before 1977, such meetings were scheduled to meet on a
quarterly basis. By supplemental agreement, reached on September 12,
1977, and continuing in effect, such meetings are now scheduled to meet
on the second Tuesday of every second month, in the headquarters office
in Des Moines. See Jt 2. /3/ Special meetings may be called by mutual
consent; but there was no evidence that any were called. Written
agenda items are exchanged no later than five workdays prior to the
scheduled date of the meeting. The Union shall be represented by all
stewards and no more than three other representatives. Minutes are
taken and approved and signed by both parties, and then posted on
bulletin boards. The typical LMRC meeting is attended by the Union
stewards, including the out-of-town stewards; the Union President; and
one other Union representative. Management representatives include the
District Director, one or more Division Chiefs, and the Personnel
Officer. Usually the LMRC meetings commence at 10:30 a.m.
4. Since as early as 1969, it had been the custom of union officials
to meet one-half hour before the commencement of the LMRC meetings to
discuss the agenda, and then to proceed, as a group, to the LMRC
meeting. Stewards from out of town would check in with their Des Moines
supervisors, or go to the cafeteria, or mill around until the start of
the "pre-LMR" meeting, which is the term they used for their one-half
hour preparatory session (TR 26). The union officials had always
claimed official time for the pre-LMR meetings and, until July 10, 1981,
management had never disallowed their claims. The key factual issue in
this case is whether responsible management officials knew these
preparatory sessions were being held.
5. None of the collective bargaining agreements between Respondent
and the Union have explicitly provided for official time to be used for
preparatory sessions. They have provided for official time for a
variety of other purposes in categories referred to as "B," "C," "D,"
"E," and "F" time. See Article 6, Section 2 of Jt 1.3-4 and R5. 7-18
and Article 6, Section 3 of R6. For some purposes, official time is
counted as "bank time," with limits being placed on the use of "bank
time" by the Union.
6. The collective bargaining agreements have provided that union
officials wishing to use official time must check with their
supervisors, and inform them of where they will be, and the approximate
time they will be away from their work area. See Article 6, Section H
of R5. 12. The union officials always did inform their supervisors
where they could be located, and for that period.
7. A "Dir-Des-Memorandum, dated March 2, 1979, promulgated
guidelines for time accountability of union stewards, union officials,
and other employees. See R3. Such memorandum are "a form of
instructions (by the District Director) to people within the
organization telling them how to implement certain policies, procedures
and practices within the district or policies that are set down from the
national or regional office" (TR 127). The March 2, 1979, one placed
the control of official time for union activity in the hands of the
first-line supervisors. See R3.7, Section 5. The Section on Check-Out
Procedures placed upon union officials "the responsibility . . . to
describe the type of union activity for which he/she is requesting
'official time' in sufficient detail for the manager to determine if it
is indeed allowable, and under what specific section of MDAIII it is
authorized" (R3.5, lines 8-13). The Section on Recording Time Usage
placed the responsibility for recording and reporting all union activity
upon the immediate supervisor and, to this end, the supervisor had to
maintain the "Manager's Monthly Record for NTEU Use of Official Time"
for each union official supervised (R3.5-6, Section .023). This record
indicated the types of union activity for which official time was
authorized under the collective bargaining agreement. See R3.8. Those
guidelines were rescinded on April 14, 1981 because they were superseded
by the NORD Agreement effective January 26, 1981. See R4 and see also
TR 129-131.
8. NORD made two major changes in relation to official time-- one
did away with bank time for both individuals and the union chapter and
provided for a single bank; and the other was to provide "very explicit
and exclusive lists for which official time was to be granted" (TR 142).
If union stewards or officials wish to perform "union duties that do
not fall into any of the specified categories of the contract," they
must request annual leave or leave without pay (TR 142-143 and see Jt.
1. 16, Article 16, Section 6). Absent such a request, Respondent places
them on absence without leave.
9. For some time, Respondent and NTEU Chapter 4 have been at odds
over the kind of information a steward must provide to a manager when
the steward wishes to use official or bank time. It has been the
position of the Union that stewards need do no more than tell the
manager that they are going to use bank time and how much. Beyond that,
the Union has taken the position that "it was none of (management's)
business what they were doing on official time," (TR 163). The Chapter
4 President, Frank Clements, and Respondent's Chief of Personnel of the
Des Moines District discussed this problem as late as June 1981. See TR
160-161. Mr. Clements took the position that the only information the
steward needed to give was that he or she was using bank time. See TR
161.
10. Prior to July 9, 1981, the Des Moines District Director and its
Personnel Chief were unaware that union officials were using or
attempting to use official time for pre-LMR meetings. The Personnel
Chief has held his job since 1977. The District Director has held his
since March 1980.
Two supervisors of union officials (Larry Wiese and Robert Van Dyke)
testified that they could not recall union officials under their
supervision ever specifically informing them that they were attending a
pre-LMR meeting, at least not before July 9, 1981. /4/ See TR 196-197
and 211-212. Mr. Wiese has been a supervisor in the Des Moines District
Office since December 1969 and has supervised several union officials
during this period. Mr. Van Dyke has been a supervisor in the Des
Moines District Office since July 1977 and has also supervised union
officials. These two witnesses appeared to give honest, candid
testimony; and I credit it. Supervisors do not attend LMRC meetings,
and are not routinely informed of when they are being held.
11. Five union officials testified. The first was Charles Bryan,
who, from 1969 to October 1980, served in official capacities for the
Union including the positions of president and chief steward. He
testified that, on the day of a LMRC meeting, his procedure was to
inform his supervisor or the group clerk "where (he) was going, a
telephone number that (he) could be reached at and that's basically it"
(TR 26). He then testified that "if (he) knew (he) was going to an LMR,
(he) would tell him (he) was going to an LMR meeting" or (if he) was
going to personnel, (he) would tell him (he) was going to personnel or
whatever" (TR 26-27). On cross, however, he conceded, consistent with
an affidavit he had given, that "we never specified (to management) any
of the time we took, what it was for" (TR 39) and, specifically, that he
did not specify that he was using official time for a pre-LMRC meeting.
See TR 40. Mr. Van Dyke was the supervisor of Mr. Bryan from 1978 or
1979 through November 30, 1982; and Mr. Bryan's concessions were
consistent with Mr. Van Dyke's testimony that he could not recall being
specifically informed that union officials under his supervision were
using official time for pre-LMR meetings. Mr. Bryan's concessions were
also consistent with the union position that what union officials did on
official time was none of management's business. See finding 9, supra.
Accordingly, I credit the concession of Mr. Bryan, that he never
specified to management for what his official time was taken, as the
more consistent and plausible of his somewhat contradictory testimony on
this point.
12. The President of Chapter 4, in 1981, was Frank Clements who,
before assuming that office in October 1980, had served as a union
official for as far back as 1974 or 1975. Beginning in January or April
1979, he came under the supervision of Mr. Wiese and, since that time
has not attended "that many" LMRC meetings because of the travel
requirements of his job (TR 224). Mr. Wiese could not recall that Mr.
Clements had attended any LRMC meetings; but he did not deny that he
may have. See TR 204. Before Mr. Wiese, Mr. Clements was supervised by
Loren Gunderman and Lester Kavan. Mr. Clements conceded that he never
went to a supervisor and said that he "want(ed) prep time for any LMRC
meeting" (TR 103). He also conceded that his time reports did not show
"specifics" as to union time (TR 101). How he operated was to give his
supervisor a buck slip, when he left for a meeting and on that buck slip
he would record "the type of time I was on, B time, D time, E time,
whatever" (TR 104). He further testified that:
And if the supervisor was available, I would hand it to the
supervisor and say, "Okay, I've got an LMR meeting at 10 o'clock
or 10:30," or whatever time it was scheduled for, "and I am going
to a meeting before that with the rest of the union people. We
will-- at such and such a time we will be in the DD's conference
room" or wherever the LMR meeting was to be held.
TR 105. When later asked specifically whether he "discussed the fact
that (he was) going to those preparatory meeting too" (TR 226), he gave
a somewhat different version.
Well, when I would check out I would say, "Okay, we've got an
LMR meeting at 10 o'clock. We're going down for a meeting in such
and such a conference room and then at 10 o'clock we will be up
there in the Director's conference room."
(TR 226) This later, less specific version is more in line with the
Union position that it was none of management's business what its
officials were doing on official time (see finding 9, supra). It is
also in line with the testimony of the supervisors who testified that
they had never heard of a pre-LMR meeting of union officials before the
July 9, 1981 instance which precipitated the action of Respondent
involved in this proceeding. See finding 10, supra. Accordingly, I
credit Mr. Clement's testimony at TR 226, rather than that at TR 105,
both quoted above.
12. Ralph Chiodo held various union positions during his employment
with Respondent, which spanned a period from January 1971 through
approximately October 1980. He attended LMRS meetings for a period of
approximately seven years. He testified that, on the day of an LMRC
meeting, he would check out of his work area in time to attend a pre-LMR
meeting and:
Generally, I would tell the supervisor that I was leaving to
meet with the union people in preparation for the LMR meeting and
that we would be in a particular conference room, and we would be
there for a specific period of time, and then afterwards we would
be attending the LMR meeting.
TR 48. On cross, Mr. Chiodo further explained:
If the supervisor was in the area, the work area, I would tell
the supervisor. If not, I would try to notify the group clerk
where I would be. I wasn't always aware, you know, where my
supervisor was.
TR 70. Mr. Van Dyke and James Klaman supervised Mr. Chiodo during the
majority of his union service. Mr. Van Dyke could not recall Mr. Chiodo
ever specifically informing him that he was attending a preparation for
a LMRC meeting; and I have credited his testimony. See finding 10,
supra.
As a witness, Mr. Chiodo seemed less candid and reliable than Mr. Van
Dyke. While in Respondent's employ, Mr. Chiodo had performance
problems; filed over six grievances on his own behalf; and received
several adverse actions. Thus, his testimony may not have been free of
bias. Mr. Chiodo's specifying to his supervisors that he was going to a
preparatory session with union officials, as he testified, would have
been contrary to the union position that what its officials were doing
on bank time was none of Respondent's business. See finding 9, supra.
Thus, I do not credit his testimony that he told his supervisors the
exact nature of his union activity-- namely that he was "leaving to meet
with union people in preparation for the LMR meeting." /5/
14. James McDonald served as a union officer and chief steward for
periods extending over 10 years. He had various supervisors, the most
recent being W. R. Mitchell. On the day of a LMRC meeting, Mr.
McDonald, normally, would tell his supervisor that he "would be in the
conference room until the time that the LMR meeting started, which could
be anywhere from a half an hour to an hour, that (he) would be in a
conference room prior to going to the LMR meeting . . . " (TR 109-110).
If his supervisor was not available, he just put on a checkout sheet
"where (he) would go and the approximate time (he) would return" (TR
110). When he checked out other employees, other than stewards, who
were to attend a LMRC meeting and the preparatory session, he did so by
telling their supervisors "where they were going to be" (TR 109). He
never signed out as attending a preparatory session. Nor did he specify
attendance at preparatory sessions on his union time monthly reports.
15. Fern Markwardt was a union officer and steward from November
1977 until July 1981 and attended pre-LMR and LMRC meetings during that
period. (She terminated her employment in October 1981). She did not
specifically identify attendance at pre-LMRC meetings on her sign-out
records. Ms. Markwardt believes that Ted Reis, a personnel management
specialist with the Des Moines District, knew that the union officials
were attending a meeting preparatory to the one with management on March
4, 1981, because, during the union meeting, he made a phone call to Mr.
Clements to tell him that management needed a little more time. See TR
80-81, 85.
16. The conference room usually used for the union's preparatory
sessions were reserved through a secretary. The union official
reserving the room did not "verbalize" the fact that he was going to use
the room for a particular union purpose (TR 112). The room was used for
a variety of union activities. "Generally" a sign was posted on the
door of the conference room indicating use by NTEU and the date and time
for which it was reserved (TR 112). This room is closed to public view;
and conversations therein cannot be overheard by those outside of the
room.
Union officials were, at times, called from the room to take a
telephone call from their group supervisor or group clerk. The persons
calling them to the phone were usually the revenue officers or their
acting chief, because they were located next to the conference room
usually used, and their telephone numbers had been used by the union
officials to indicate where they could be located. There was no
evidence that the revenue officers or their chief had any supervisory
responsibility over the union officials or their official time
activities or knew the nature of the meeting in the conference room.
On some occasions, one or two personnel specialists or the District
Director's secretary would contact the union president or chief steward
during the preparatory session, to request a few minutes delay in the
start of the LRMC meetings. One such interruption occurred on March 4,
1981, when the union president took a phone call from a personnel
specialist. See TR 78-81. The witnesses testifying to this believed
that management, therefore, knew a preparatory session was going on.
See TR 85 and 115 and finding 15, supra. This belief was based on the
fact that a LMRC meeting was coming up; management was preparing for
it; and management knew where to locate the union official contacted.
See TR 85 and 115. There was no direct evidence that anyone from
management actually knew who all was in the conference room, besides the
one union official contacted or what was going on in the conference
room.
17. On July 9, 1981, a LMRC meeting was held. A union steward,
Florence Nicolou, told her supervisor, Mr. Wiese, that she was attending
a pre-LMRC meeting with other union officials. See TR. 197. This was
the first time Mr. Wiese could recall any mention of such meeting. He
did not question her about it at the time, as he was on his way to a
meeting. After his meeting, he consulted with a couple of other
managers who told him they had had no experience with a pre-LMRC
meeting. At this point, Mr. Wiese contacted Mr. Reis for advice on how
to charge for such a meeting. Mr. Reis advised him that union officials
were not entitled to official time for such meetings. Also on July 9,
1981, the second-line supervisor of Ms. Markwardt questioned the
personnel office about the appropriateness of official-time use for
attendance at preparatory sessions of union officials prior to a
labor-management meeting.
18. On July 9, 1981, four union officials, Fern Markwardt, Frank
Kahler, Florence Nocolou and Jim McDonald, attended a meeting at or
about 9:30 a.m. to prepare for a LMRC meeting to be held immediately
thereafter. At or about 10 o'clock a.m. on July 9, 1981, the same four
union officials attended the scheduled LMRC meeting that included, in
addition to the union officials, the Des Moines District Director, and
other management representatives.
19. On July 10, 1981, the Personnel Chief convened a meeting to
which the four union officials who had attended the July 9, 1981 LMRC
meeting were invited, as were their respective supervisors. It was
convened to learn what exactly had happened the day before. The union
officials confirmed that there had been a preparation meeting prior to
the LMRC meeting the day before, and that they had been having such
meetings for a number of years. They indicated that they were entitled
to it and that management was totally out of line even questioning the
subject. They also indicated that they were not inclined to make any
requests for annual leave or leave without pay to cover such time; and
none did. The Personnel Chief was "(m)ost definitely" surprised to
learn of the preparatory sessions at this meeting (TR 182).
20. On or about July 10, 1981, each of the four union officials who
attended the July 9, 1981, meeting was advised that his or her leave
record would be charged with one-half hour absence without leave. This
occurred after they failed to request annual leave or leave without pay
for such time. See TR 145. Subsequently, the four union officials were
charged one-half hour absence without leave for July 9.
21. On July 27, 1981, the Union President sent a letter to the Des
Moines District Director. See Jt 4. It referred to the "unilateral
change" of the practice with regard to union officials' time to meet
before the LMR meetings. It served notice that the Union wanted "to
negotiate the change." Its proposal was:
(T)hat the practice shall continue as it was prior to the
unilateral change. I.E. (sic.) Union officials, who, pursuant to
our agreement are allowed to attend LMR meetings shall be allowed
official time to meet among themselves prior to the LMR meeting.
This was the only proposal made by the Union on this issue.
22. On August 7, 1981, the Des Moines District Director replied to
the union proposal. He stated that "negotiations are not appropriate in
this matter," and gave two reasons (Jt 5.2). One reason has been
abandoned. See TR 125 and RBr 8, fn. 3. The other was as follows:
There has been no change in personnel policy or practices or
other general conditions of employment. No time has ever been
granted by management to union officials for them to meet before
the LMR meetings. If such meetings have taken place in the past,
they have taken place without the specific knowledge and consent
of this district's management. In addition, any such meetings
would have taken place prior to the implementation of the NORD
contract, since we have not had an LMR Committee meeting since May
13 of 1980. The official time provisions of Article 6, Sections
2B1 and 2D1 have been changed significantly by limiting official
time to activities included in the all inclusive lists of these
sections of the NORD contract. Therefore, there is no past
practice established under this contract in relationship to it.
See Jt. 5.1
Discussion and Conclusions
1. The General Counsel has not met its burden of proving, by a
preponderance of the evidence, /6/ that Respondent changed a condition
of employment when, on July 10, 1981, it put a stop to union officials
using official time to attend preparatory sessions for labor-management
meetings.
It is undisputed that a condition of employment may be established by
a past practice, consistently exercised for an extended period with the
knowledge and consent of responsible supervisors, and that it cannot be
changed without first engaging in good faith bargaining. However, a
showing of "unwitting acquiescence" on the part of a supervisor will not
suffice. See Department of Defense, Department of the Navy, Polaris
Missile Facility, Atlantic, Charleston, South Carolina, 6 FLRA No. 67, 6
FLRA 372 at 379 (1981). Nor will it suffice that "evidence shows that
individual managers may have developed knowledge of the Union's actions
had they been more observant or inquired more thoroughly . . . ."
Department of the Treasury, Internal Revenue Service, Cleveland, Ohio, 6
FLRA No. 40, 6 FLRA 240 at 249 (1981).
The General Counsel and the Charging Party point to various clues
from which they argue that Respondent must have known that, for years,
union officials had been using official time for preparatory sessions
before labor-management meetings. Examples offered include such facts
as supervisors sometimes contacting union officials by telephone during
the course of the preparatory sessions; the preparatory sessions
occurring with some regularity before the labor-management meetings;
/7/ the conference rooms in which they met being obtained through
management and indicating, by a sign on the door, that they were being
used by the Union; and one supervisor having reviewed a notation on
three time reports that "Prep" time was being claimed by a union
official before a labor-management meeting.
Had the individual supervisors gotten together or done some
sleuthing, this trail of clues might have led them to the conclusion
urged. However, no one supervisor became suspicious until July 9, 1981,
whereupon an investigation took place and a halt promptly called to the
practice at issue.
Suspicion would not inevitably arise from even the totality of the
clues relied upon by the General Counsel and the Charging Party. The
record shows that union officials engage in a variety of union
activities for which they reserve conference rooms and that supervisors
are not generally familiar with the date and time of labor-management
meetings. The record does not establish that any supervisor, before
July 9, 1981, was aware that the conference room to which a union
official had gone was full of other union officials preparing for a
labor-management meeting. Whether one supervisor ever noted a "Prep"
time claim on time records of one union official is problematic. See
footnote 5 to finding 13, supra. At the most, it was shown that the
supervisors were lax in attending to their responsibilities. Laxity,
however, does not equate to knowing acquiescence in a practice.
Of somewhat more significance is the fact that, on occasion, a
personnel specialist, or the District Director's secretary, would
contact the union president or the chief steward, while the preparatory
meeting was in session, to request a delay in the start of the
labor-management meeting. However, as already noted, such union
officials have many duties under the contract and multiple uses for
conference rooms. There was no direct evidence that the secretary or
the personnel specialist knew what the particular union official was
doing in the conference room. The conclusion can be as readily drawn
that the secretary or the personnel specialist tried to reach the union
official at his or her duty post and been given the phone or room number
where the official could be reached, without attaching any particular
significance to the fact that the official was away from his or her duty
post just before the scheduled start of the labor-management meeting.
The facts supporting the General Counsel's case are too speculative
in nature to support a finding that Respondent knowingly acquiesced in
the practice at issue. Rather, the record supports a finding that, for
years, the Union successfully adhered to its position that what its
officials did on bank time was none of Respondent's business.
2. The General Counsel has not met its burden of proving, by a
preponderance of the evidence, that Respondent refused to negotiate in
good faith over a union proposal.
The only request to negotiate made by the Union was couched in terms
of negotiating the "unilateral change" in practice. See finding 21,
supra. Having found insufficient evidence to demonstrate any such
unilateral change in a practice, I must conclude that Respondent did not
fail to negotiate in good faith when it told the Union that there had
been no change, and declined to negotiate for that reason.
In view of these conclusions, there is no need to reach other issues
raised by the parties.
Ultimate Findings and Order
Respondent has not been shown, by a preponderance of the evidence, to
have violated the Statute as alleged.
Accordingly, the complaint in this case should be, and hereby is,
dismissed.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: April 25, 1983
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ These sections provide as follows:
Sec. 7116. Unfair Labor practices.
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter; . . .
(or)
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter; . . . .
/2/ The following abbreviations will be used herein. "TR" refers to
the transcript. "GC" refers to the exhibits of the General Counsel;
"R" refers to those of Respondent; and "Jt" refers to the joint
exhibits. "GCBr" refers to the brief of the General Counsel; "RBr" to
that of Respondent; and "CPBr" to that of the Charging Party.
Multipage exhibits and the briefs will be designated by page or
paragraph number following the exhibit or brief designation.
Respondent's unopposed Motion to Correct the Transcript is granted,
with one exception. The correction to line 5 of page 104 is a change of
"time" to "kind." The corrections are set forth in Appendix A to this
decision. I have made one other, to page 44, line 24, pursuant to 5 CFR
2423.19(r).
/3/ In practice, the meetings are apparently held less frequently.
In 1980, only one such meeting was held. See TR 78. In 1981, as of
July, one was held on July 9 and possibly one in March. The one in
March was called a "mini LMRC" by a personnel management specialist (TR
95). However, it lacked some indicia of a LMRC meeting-- management
limited the Union attendance to exclude out-of-town stewards; and no
minutes were taken.
/4/ Mr. Van Dyke, on cross, was questioned about union use of
conference rooms. He answered that, to his knowledge, the union used
them for a variety of purposes, "ordinarily" to interview witnesses or
prepare a grievance (TR 222). He conceded the "possib(ility)" that the
Union used them for a pre-LMR meeting.
/5/ Mr. Chiodo produced ten blank pages on which were pencilled in a
recap of his official time for months in 1977, 1978 and 1979. See GC 2.
He claimed that they were copies of the backside of his time reports
turned in to his supervisors. On 3 of the 10, there was an entry "Prep
and LMR Meeting." See GC 2. 3,. 4, and .6. Some additions were
admittedly made by Mr. Chiodo to the exhibits when he turned them over
to the General Counsel for use as evidence. The reliability and
authenticity of these exhibits is open to question; and little weight
should be accorded them. Mr. Van Dyke, the supervisor of Mr. Chiodo
during the period of the exhibits, did establish that they were the type
of record he would have required. Mr. Van Dyke reviewed time records,
in a general way, and concentrated on the front where case time was
shown. He noted the backs only as a need might arise. He opined that
it was "possible" that he had noted the entry of Mr. Chiodo concerning
preparation for a LMRC meeting (TR 219).
/6/ See 5 U.S.C. 7118(a)(7) requiring this standard of proof.
/7/ The LMRC meetings did not occur with the regularity claimed by
the General Counsel, namely "every other Tuesday or so" (GCBr 10-11).
These meetings were only scheduled to meet quarterly, at first, and then
every other month; and they did not always take place as scheduled. In
1980, only one such meeting was held. See footnote 3 to finding 3,
supra.