[ v16 p182 ]
16:0182(30)CA
The decision of the Authority follows:
16 FLRA No. 30
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, FOOD AND
DRUG ADMINISTRATION,
REGION II, NEW YORK REGIONAL
LABORATORY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2637
Charging Party
Case Nos. 12-CA-20209
12-CA-20210
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices and recommending that it be ordered to
cease and desist therefrom and take certain affirmative action. The
Respondent filed timely exceptions to the Judge's Decision and the
General Counsel filed a response to the Respondent's 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, /1/ conclusions /2/ and Recommended Order.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Statute, the
Authority hereby orders that the Department of Health and Human
Services, Food and Drug Administration, Region II, New York Regional
Laboratory, shall:
1. Cease and desist from:
(a) Rejecting or failing to accept Joseph McCallion, or any
other representative designated by the American Federation of
Government Employees, Local 2637, AFL-CIO as an observer and
member of any Merit Training Panel which may be convened to rate
applicants for training under the New York Regional Laboratory
Training Plan.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Accept and permit Joseph McCallion, or any other
representative designated by the American Federation of Government
Employees, Local 2637, AFL-CIO, to act as an observer and member
of any Merit Training Panel which may be convened to rate
applicants for training under the New York Regional Laboratory
Training Plan.
(b) Post at its facility at New York Regional Laboratory, New
York, N.Y., 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 of the New York
Regional Laboratory, or his designee, and shall be posted for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure
that such Notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region I, 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., October 2, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
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 reject or fail to accept Joseph McCallion, or any other
representative designated by the American Federation of Government
Employees, AFL-CIO, Local 2637, as an observer and member of any Merit
Training Panel which may be convened to rate applicants for training
under the New York Regional Laboratory Training Plan.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce employees in the exercise of their rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL accept and permit Joseph McCallion, or any other
representative designated by the American Federation of Government
Employees, AFL-CIO, Local 2637, to act as an observer and member of any
Merit Training Panel which may be convened to rate applicants for
training under the New York Regional Laboratory Training Plan.
(Activity)
Dated: By: (Signature) (Title)
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 its provisions, they may communicate directly with the Regional
Director Region I, Federal Labor Relations Authority whose address is:
441 Stuart Street, 9th Floor, Boston, MA 02116 and whose telephone
number is: (617) 223-0920.
--------------- ALJ$ Decision follows -------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
FOOD AND DRUG ADMINISTRATION REGION II
NEW YORK REGIONAL LABORATORY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2637
Charging Party
Case Nos. 12-CA-20209
12-CA-20210
Susan Cohen DeStefano, Esq.
George Borg
For the Respondent
Marilyn Z. Roth, Esq.
For the General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to an Order Consolidating Cases, First Amended Complaint and
Notice of Hearing issued on July 21, 1982 by the Regional Director for
the Federal Labor Relations Authority, Boston, Massachusetts Region, a
hearing was held before the undersigned on December 16, 1982 at New
York, N.Y.
This proceeding arose under the Federal Service Labor-Management
Relations Statute (herein called the Statute). It is based on charges
filed on January 25, 1982 in Case No. 2-CA-20209 and Case No. 2-CA-20210
by American Federation of Government Employees, AFL-CIO, Local 2637
(herein called the Union) /3/ against Department of Health and Human
Services, Food and Drug Administration Region II, New York Regional
Laboratory (herein called Respondent).
The Complaint alleged, in substance, that on or about January 4,
1982, Respondent refused to bargain in good faith with American
Federation of Government Employees, AFL-CIO, Council 242 (herein called
AFGE Council 242), the exclusive bargaining representative, by failing
and refusing to recognize Joseph McCallion as the designated Union
observer for a Merit Training Panel to be held on January 5, 1982-- all
in violation of section 7116(a)(1) and (5) of the Statute.
Respondent's answer, dated July 29, 1982, denies its refusal to
bargain as alleged in the complaint. It sets forth various affirmative
defenses, hereinafter alluded to, and denied the commission of any
unfair labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered.
Upon the entire record, from my observation of the witness and their
demeanor, and from all of the testimony and evidence adduced at the
hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein AFGE Council 242 has been and still
is the certified exclusive bargaining representative of all professional
and non-professional employees of the New York, N.Y., Newark, N.J. and
Buffalo, N.Y. District Offices of the Food and Drug Administration with
specified exclusions.
2. At all times since November 26, 1974 the Food and Drug
Administration, New York District and the Union herein have been parties
to a collective bargaining agreement covering the unit of employees
heretofore described and set forth above. The said 1974 agreement,
pursuant to a Memorandum of Agreement On Implementation of the
Reorganization of FDA Region II between Respondent and the Union, dated
April 23, 1982, continues in effect pending a superseding regional
collective bargaining agreement.
3. In 1979 the Science Branch of the New York District, /4/ Food and
Drug Administration, Region II, was reassigned to the Regional Food and
Drug Director. It was renamed the New York Regional Laboratory.
Further, the latter is deemed the organizational equivalent of the other
FDA Districts in Region II. The Director of the Laboratory, George H.
Boone, who was formerly head of the Science Branch, occupies the same
management status as other District Directors. /5/
4. A dispute has existed since June 30, 1981 between the Union and
Respondent as to the number of Union officials who would be recognized
by management as representatives of employees. At a meeting on that
date between Boone and Sidney Morse, President of the Union as well as
AFGE Council 242, Morse stated there were 13 union officers in Local
2637. Boone reminded the Union President that under the contract nine
union officials would be recognized as employee representatives. /6/
Memos to this effect, which referred to Article IX of the collective
bargaining agreement restricting the number to nine, was written from
Boone to Morse on July 10, 1981 and November 2, 1981. The Director also
requested that the Union submit a list of nine officials designated by
Morse so they could be recognized for the purposes of granting official
time for representational activity. Morse replied in a memo dated
November 9, 1981 seeking clarification re the unit involved, and Boone
wrote the Union President on November 10, 1981 wherein he specified the
unit was referenced in Article III of the bargaining agreement. This
request for nine official representatives was not fulfilled by the
Union. In a memo dated December 11, 1981 Boone advised Morse that, due
to the pendency of the dispute, management would not recognize Union
officials other than its president for the purpose of granting official
time. /7/
5. In connection with Merit Training Program for employees, a Merit
Training Panel has been established by Respondent for many years. This
involves a panel of raters who evaluate the applications of those
individuals who desire to enter a particular training program. Points
are assigned based on the answers to questions and listings prepared.
The said list, together with the applications, are given to the
selecting official who makes the decision as to which employees will be
trained. It is then sent to management.
6. The Merit Training Panel is composed of two raters who are
appointed by management, a representative from the training committee
who reads the application, an EEO observer, and a Union observer. In
addition to rating individual applicants, the observer makes sure the
procedure follows the Plan and that certain forms are signed.
7. Respondent issued on December 7, 1981 a Training Course
Announcement for "Research Techniques." This course would involve 10
chemists or entomologists and 5 microbiologists and would be held during
the period January 18-22, 1982.
8. Under date of December 24, 1981 Ted M. Hopes, Director, Chemistry
Branch of Respondent, wrote Morse that a panel would meet on January 5,
1982 to consider applications for the Research Techniques Course. Hopes
requested that the Union President send him the name of a Union
representative as soon as possible. /8/ Since he was occupied with
other matters, Morse turned the request over to James Nelson,
vice-president of the Union. /9/
9. Whereupon Nelson, under date of December 29, 1981, sent a memo to
Hopes naming Joseph McCallion as the Union representative to serve on
the panel scheduled to meet on January 5, 1982. A copy thereof was
given to Morse by Nelson.
10. Hopes sent a memo, dated January 4, 1982, to Morse wherein he
commented that management had not received a response from the Union
President with respect to naming a union representative for the Merit
Training Plan Panel. He reiterated that the panel would meet on January
5, 1982 to consider applications for the Research Techniques Course, and
Hopes stated that if a name was not received by close-of-business on
January 4, 1982, the Panel would proceed without a union representative.
11. On the same day, January 4, 1982, Hopes sent Nelson a memo
returning the memo which Nelson had sent him. The Director also stated
that "due to the pendency of the dispute about the number of Union
officials to be recognized by Management, Management is not recognizing
Union officials other than the Union President."
12. Morse replied to Hopes by a memo dated January 4, 1982 wherein
he attached copies of the memo which he sent to Hopes on December 24,
1981, listing the union officers, as well as Nelson's memo of December
29, 1981 to the Director. The Union President also reminded Hopes that
there must be a union representative on the Panel.
13. On the morning of January 5, 1982 Boone asked James Yager,
chairman of the Training Panel, if the Panel expected to meet that day
for the Research Technique course. Upon being told it would be
convened, Boone told Yager to delay it since there was a problem with
the Union. Yager spoke to Hopes who gave him the names of the raters,
but said there was no Union observer. At 10:50 a.m. on that day
McCallion approached the chairman of the Program and said that he was
the Union observer for the Panel.
14. Upon being so informed by the Union representative, Yager
related this information to Boone. The latter replied that there were
problems with McCallion sitting on the Panel; that Yager could tell
McCallion he is not recognized as an observer; that Morse knows what to
do to have a representative on the Panel. Whereupon Boone advised Yager
to proceed with the Panel. Further, the chairman then spoke to
McCallion, told him that management didn't recognize him as a union
observer, and he should not attend the Panel.
15. The Training Panel was held on January 5, 1982 without a Union
observer. Eligible candidates were certified, after routing procedures
were followed, as eligible for the Research Techniques Course.
16. Hopes testified that since 1958 the Union has selected an
observer for the Merit Training Panel on about 10-15 occasion. The
customary procedure was that Hopes asked Morse for the name of the Union
observer and the Union President would submit same. The Director
further testified that after January 22, 1982 the Respondent recognized
nine Union officials for the laboratory; that from thence on management
accepted designations from individuals other than Morse to serve as
Union observer on the Merit Training Panel.
Conclusions
The primary issue for consideration herein may be stated as follows:
whether Respondent's refusal to accept, as a Union observer or member on
its Merit Training Panel, the individual designated by the Union
vice-president was violative of the Statute.
While no case directly in point has been called to my attention, the
Authority has had occasion to consider cases wherein the representative
status of union designees has been called into question. In American
Federation of Government Employees, AFL-CIO, and U.S. Air Force, Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 4 FLRA
No. 39 (1980), the Activity proposed, inter alia, that the union
designate its representatives from prescribed organizational levels when
dealing with management as to certain functions. The Union refused to
bargain as to such proposal, and the Authority held such refusal was not
in violation of Section 7116(b)(5) and (1) of the Statute. It was
declared that the proposal infringed upon the union's prerogative to
designate its own representative; that it is within the discretion of
both agency management and a labor organization to designate their
respective representatives when fulfilling their responsibilities under
the Statute.
Further, where an agency denied a union official access to the
premises it was held in Philadelphia Naval Shipyard, 4 FLRA No. 38
(1980) that such conduct ran afoul of Section 7116(a)(1) and (5) of the
Statute. Such denial by management thwarted the bargaining process
since the official was bent upon engaging in representative duties at
the time. Management, it was determined, had no right to determine who
would act as the union's representative, and its attempt to do so was an
intrusion into the internal affairs of the bargaining agent and improper
interference.
Respondent maintains that, in refusing to accept McCallion as the
Union designee or observer on the Training Panel, it did not interfere
with any rights of the Union nor violate the Statute. It contends that
management has always obtained a designation from the Union President
and accepted that designee. However, the employer inside it is entitled
to reject any observer, appointed by someone other than the President.
Its defense is pastured on two principal arguments. /10/ Firstly,
Respondent maintains that it was not required to bargain at the District
office level since the bargaining agent, AFGE Council 242, represented a
region-wide unit. It argues that its obligation is to bargain only on a
regional level. This argument is rejected. It is true that where a
union is certified for a consolidated unit an obligation to bargain may
be confined to the level of recognition in lieu of smaller units now
included in the consolidated unit. See Department of Health and Human
Services, Social Security Administration, 6 FLRA No. 33 (1981).
However, the parties, as the Authority declared in the cited case, may
agree to authorize negotiations at a lower level. In the case at bar
the Union and Respondent have been parties to a collective bargaining
agreement since 1974 covering these District employees. Moreover, their
Memorandum of Agreement, executed on April 23, 1982, recited that the
1974 bargaining contract continue in effect until superceded by a
regional collective bargaining agreement. Thus, Respondent has
recognized an obligation to bargain on the District level. /11/
Further, the Authority has held that where lower level management
initiates action affecting conditions of employment thereat, it is
responsible therefor even when exclusive recognition is at a higher
level. Department of Health and Human Services, Social Security
Administration, Office of Program Operations and Field Operations,
Sutter District Office, San Francisco, California, 5 FLRA No. 63 (1981).
It is also contended by the employer herein that its refusal to
accept McCallion was part and parcel of the main dispute with the Union
re the number of employees who would be recognized as Union
representatives and accorded official time. Management avers this was a
matter of contract interpretation, so that its conduct in refusing to
accept the observer selected by vice-president Nelson could not be
resolved in an unfair labor practice proceeding. In this respect,
Respondent adverts to Article 9, Section 2 of the Agreement between the
parties which provided that the employer would recognize nine union
officials. Recognition of McCallion, it is claimed, would have meant
that more than nine Union officials were being recognized, and the
employer was thus merely conforming to the collective bargaining
agreement. Such conformance, it insists, cannot be deemed a refusal to
bargain or interference with the Union.
In respect to the foregoing argument, I am persuaded that the
language in Article 9, Section 2 of the bargaining contract was not
intended to delimit the selection or designation of a Union observer to
sit on the Training Panel. A somewhat similar situation existed in Utah
Army National Guard, Salt Lake City, Utah, A/SLMR No. 966 (1978). In
that case the parties executed "Ground Rules for Negotiations" as a
preliminary agreement to this basic contract. The Ground Rules
provided, inter alia, that five members of the Union negotiating team
were employees of the National Guard. Management refused to recognize a
former employee as the union's chief negotiator. It was held that the
provision in the ground rules was not intended to limit the composition
of the negotiating committee; that by agreeing to such language the
union did not waive its right to select a union representative for
negotiating purposes. The Assistant Secretary found that such refusal
violated Section 19(a)(1) and (6) of Executive Order 11491, as amended.
/12/
In the case at bar I am constrained to conclude that, while a dispute
may have existed between the parties as to the number of union
representatives to be recognized by the employer, it did not entitle
Respondent to reject the Union's designee as a panel member. The
rejection was predicated on the fact that the Union President Morse had
not selected designee McCallion. But the latter had been sent as a duly
chosen representative, and authorized by Morse when the latter told
Vice-President Nelson to make the selection. Denial of recognition to
such representative is a rejection of the collective bargaining process
and an infringement upon the Union's right to choose its own
representatives. Despite the controversy as to the number of Union
representatives which would be recognized by Respondent, management may
not justifiably decide which employees will be the Union observer on the
Training Panel. That dispute does not encompass the present issue, and
I do not agree that the matter for determination herein must be resolved
as part of such dispute. Moreover, the language in Article 9 of the
contract does not spell out a clear and unmistakable waiver on the part
of the Union as to naming its representative for the Training Panel.
See Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA
No. 2 (1981); Department of Health and Human Services, Social Security
Administration, Great Lakes Program Service Center, Chicago, Illinois,
Case No. 5-CA-1204, Administrative Law Judge Decisions Report No. 22,
March 10, 1983.
Respondent also maintains that the refusal to accept the observer
designated by the Union only occurred once, and that since January 5,
1982 it has accepted the representatives appointed by other persons
other than the Union President. Accordingly, it insists there has been
no continuing violation, and the occurrence was de minimis. I disagree.
Respondent's conduct was not trivial in nature, and the fact that it
was not repeated does not militate against finding the same to be
violative of the Statute. The Authority has held that a refusal to
allow a duly appointed representative of the union's negotiating
committee to attend a pre-negotiation meeting was a serious violation;
that a subsequent reversal of management's decision, allowing him to
attend the meeting, did not render the earlier refusal moot or de
minimis, Veterans Administration, Veterans Administration Center,
Laboratory Service, Temple, Texas, 2 FLRA No. 117 (1980). Likewise, in
the case at bar, Respondent's subsequent acceptance of a Union observer
from someone other than Morse does not cure the initial violation or
render it moot.
In sum, I conclude Respondent unjustifiably rejected Joseph
McCallion, the Union designee, as the Union representative to the Merit
Training Panel which met on January 5, 1982. Its action in that regard
was a rejection of the performance of its allegation to bargain
collectively as set forth in Section 7103(a)(12) of the Statute.
Further, it interfered with the right of the Union to select its own
representative to said panel. This constituted a clear interference,
restraint or coercion of the rights assured employees. See Veterans
Administration, et. al. supra. Respondent's action on January 5, 1982
constituted a violation of Section 7116(a)(1) and (5) of the Statute.
Having concluded that Respondent violated the Statute as aforesaid, I
recommend that the Authority issue the following:
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Statute, the
Authority hereby ordered that the Department of Health and Human
Services, Food and Drug Administration Region II, New York Regional
Laboratory, shall:
1. Cease and desist from:
(a) Rejecting or failing to accept Joseph McCallion, or any
other representative provided by the American Federation of
Government Employees, Local 2637, as an observer and member of any
Merit Training Panel which may be convened to rate applicants for
training under the New York Regional Laboratory Training Plan.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action:
(a) Accept and permit Joseph McCallion, or any other
representative provided by the American Federation of Government
Employees, Local 2637, to act as an observer and member of any
Merit Training Panel which may be convened to rate applicants for
training under the New York Regional Laboratory Training Plan.
(b) Post at its facility at New York Regional Laboratory, New
York, N.Y., copies of the attached notice marked "Appendix" on
forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms they shall be signed by the Director of
the New York Regional Laboratory, and they shall be posted for 60
consecutive days thereafter, in conspicuous places, including all
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.
(c) Pursuant to Section 2423.30 of the Rules and Regulations,
notify the Regional Director, Region I, 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.
WILLIAM NAIMARK
Administrative Law Judge
Dated: May 27, 1983
Washington, DC
APPENDIX
NOTICE TO ALL EMPLOYEES
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
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT reject or fail to accept Joseph McCallion, or any other
representative provided by the American Federation of Government
Employees, Local 2637 as an observer and member of any Merit Training
Panel which may be convened to rate applicants for training under the
New York Regional Laboratory Training Plan.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce employees in the exercise of their rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL accept and permit Joseph McCallion, or any other
representative provided by American Federation of Government Employees,
Local 2637, to act as an observer and member of any Merit Training Panel
which may be convened to rate applicants for training under the New York
Regional Laboratory Training Plan.
(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 any employees have any question concerning this Notice or
compliance with any of its provisions, they may communicate directly
with the Regional Director, Region III, Federal Labor Relations
Authority, whose address is: 441 Stuart Street, 9th Floor, Boston,
Massachusetts 02116 and whose telephone number is: (617) 223-0920.
--------------- FOOTNOTES$ ---------------
/1/ The Respondent excepted to the Judge's finding of fact that "In
addition to rating individual applicants, the observer makes sure the
procedure follows the Plan and that certain forms are signed." After
careful examination of the record, and noting that the General Counsel
specifically does not oppose the exception regarding the role of the
Union observer at Merit Training Panels, the Authority finds that the
Union observer does not rate individual applicants, but instead observes
the proceedings and signs certain forms. Therefore, the Judge's
findings at Page 4, Paragraph 6 of his Decision are modified
accordingly.
/2/ In a case involving designation of union representatives for
negotiations, the Authority held that an agency commits a violation of
section 7116(a)(5) of the Statute when it designates the representatives
of a labor organization with whom it will deal, rather than allowing the
labor organization the right to designate its own representatives.
Department of the Air Force 915th Tactical Fighter Group Homestead Air
Force Base, Florida, 13 FLRA No. 33 (1983).
/3/ The cases were transferred from Region II to Region I on February
18, 1982.
/4/ Two other branches of the New York District are The Investigation
and Compliance sections.
/5/ In a memorandum of Agreement dated October 16, 1979, Respondent
and the Union agreed that when the existing 1974 agreement refers to
Employer or District Director, it refers to the Director of the
Laboratory during the reassignment.
/6/ The record reflects that the Union had taken the position that it
was entitled to as many as 18 representatives.
/7/ As a result of the dispute the Union had filed an unfair labor
practice charge against Respondent on July 21, 1981. The regional
office declined to issue a complaint on the ground that the matter was
one of contract interpretation (Case No. 2-CA-1105 - October 16, 1981).
Respondent attempted to resolve the matter under the bargaining
agreement and also submit same to arbitration. The Union would not
accede to those procedures. The dismissal of the charge was upheld by
the Assistant General Counsel for Appeals on February 18, 1982.
/8/ Under 5B of the New York Regional Laboratory Merit Training Plan
both the Union and the EEO "each will provide one observer" to serve on
the Rating Panel.
/9/ In a memo dated December 24, 1981 Morse advised Hopes that at a
meeting of the Union on December 22, 1981 elected union officials were:
Morse, President; Nelson, Vice-President; and Charles Cardile, Shop
Steward.
/10/ Various other defenses are raised by Respondent in its brief to
the undersigned. These defenses, it is concluded, are not relevant to
the central issue herein, and would not be determinative as to whether
the rejection of the Union's designee was violative of the Statute.
/11/ Whether bargaining is authorized at a lower level may be
determined by the collective bargaining agreement between the parties.
See American Federation of Government Employees, AFL-CIO Local 965 and
Department of the Treasury, U.S. Mint, Denver, Colorado, 3 FLRA No. 7
(1980).
/12/ This section is similar in essence to Section 7116(a)(1) and (5)
-------------------- ALJ$ DECISION FOLLOWS --------------------
of the Statute which was the Order's Successor.