[ v21 p765 ]
21:0765(96)CA
The decision of the Authority follows:
21 FLRA No. 96
U.S. NUCLEAR REGULATORY COMMISSION
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-40346
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Decision of the Administrative Law Judge filed by the
Respondent. The exceptions are limited to the Judge's finding that the
Respondent violated section 7116(a)(1) and (8) of the Federal Service
Labor-Management Relations Statute (the Statute) by holding a formal
discussion within the meaning of section 7114(a)(2)(A) of the Statute on
April 6, 1984, without permitting the Charging party's designated
representative an opportunity to participate in the discussion. /1/ No
exceptions were filed to the Judge's additional finding that the
Respondent did not also violate the Statute by conducting a formal
discussion with unit employees on April 5, 1984, because the Charging
Party had been notified of the meeting but chose not to attend. In the
absence of exceptions to this finding, the Authority adopts it without
comment.
II. Background Facts
On April 6, 1984, representatives of the Respondent conducted what
all parties concede was a formal discussion within the meaning of
section 7114(a)(2)(A) of the Statute. The meeting was conducted by the
Director of the Administration and Resource Control Staff, Francis P.
Gillespie, and involved the employees of the Accident Evaluation
Division. The subject matter of the meeting concerned a planned
reorganization of the Office of Nuclear Research, of which the Accident
Evaluation Division is a component. In addition to all of the employees
in the Accident Evaluation Division, including the Division and Branch
Chiefs, Labor Relations Specialist Theresa Spearman was in attendance on
behalf of management and Martin Levy was in attendance as the designated
union representative. Upon completing his prepared remarks, which
included comments regarding why a zero was placed next to certain
employees' names on the staffing plan previously supplied to employees
in attendance, Gillespie asked for questions. None were forthcoming.
Gillespie then advised the employees that any comments or suggestions
they had should be routed through the National Treasury Employees Union
(NTEU), the exclusive representative of the employees in attendance.
Levy then rose, identified himself by name and NTEU position, and began
to discuss the zeroes in the staffing plan. After being interrupted by
Spearman several times while attempting to comment about the zeroes,
Levy dropped the matter and attempted to explain to employees how they
should route their comments and suggestions to the NTEU. He was again
interrupted by Spearman who prevented him from explaining anything
further to the employees other than that they should see their union
steward.
III. Judge's Decision
In finding that the Respondent violated section 7116(a)(1) and (8) of
the Statute when it effectively prevented Levy from speaking, there by
interfering with the UnionS right to be represented at a formal
discussion under section 7114(a)(2)(A) of the Statute, the Judge
concluded that the statutory phrase "right to be represented" means the
right to comment, speak and to make statements. He noted, however, that
this right does not entitle a union to take charge of the proceedings.
In this respect, the Judge found that Levy's comments were related to
matters discussed either directly or indirectly by Director Gillespie.
IV. Positions of the Parties
The Respondent took the position in its exceptions that the NTEU
representative had no right under section 7114(a)(2)(A) of the Statute
to discuss how bargaining unit employees should communicate with the
NTEU because such discussion constitutes internal union business. With
respect to the Judge's finding that the NTEU representative was
prevented from discussing the staffing plan, the Respondent contends
that Spearman was merely attempting to Prevent Levy from discussing
matters beyond the scope of what had been addressed by Gillespie at the
meeting. The Respondent also argued that its agent's conduct in
preventing the NTEU representative from continuing was based on a
legitimate interpretation of the parties' collective bargaining
agreement, which includes language addressing NTEU'S rights at a "formal
discussion," and therefore involves only differing and arguable
interpretations of their agreement with regard to formal discussions
rather than an unfair labor practice.
In its opposition to the Respondent's exceptions, NTEU contends that
the first two exceptions constitute mere disagreement with the Judge's
findings that both matters which the NTEU representative was prevented
from addressing at the meeting were related to matters commented on
directly or indirectly by Gillespie. With respect to the Respondent's
final exception, the NTEU contends that the applicability of the
collective bargaining agreement was not at issue and is beyond the scope
of the exceptions. Further, the NTEU argues that the cases relied on by
the Respondent are not applicable because they involve management
changes in working conditions alleged to be covered by a collective
bargaining agreement rather than a violation of a specific statutory
right.
V. Analysis
The Authority specifically adopts the Judge's conclusion and
supporting rationale that the Respondent violated section 7116(a)(1) and
(8) of the Statute by effectively preventing the NTEU representative,
Martin Levy, from speaking at a formal discussion within the meaning of
section 7114(a)(2)(A) of the Statute. Thus, as concluded by the Judge,
the language in section 7114(a)(2)(A) of the Statute that the "exclusive
representative . . . shall be given the opportunity to be represented"
at a formal discussion means more than merely a right to be present. It
also means that a union representative has a right to comment, speak and
make statements. Of course, as noted by the Judge, this does not
entitle a union representative to take charge of, usurp, or disrupt the
meeting. Comments by a union representative must be governed by a rule
of reasonableness, which requires that there be respect for orderly
procedures and that the comments be related to the subject matter
addressed by the agency representative(s) at the meeting. Further, in
applying such a rule in future cases, the Authority will consider the
purpose of the meeting conducted by the agency representative(s) and all
of the surrounding circumstances in determining the extent of a union
representative's right to participate in any formal discussion.
As noted above, the Respondent essentially contends in its first two
exceptions that the subject matter of the NTEU representative's comments
went beyond what should be permissible, while the NTEU argues in
opposition to those exceptions that they constitute mere disagreement
with the Judge's factual analysis. The Authority agrees with the NTEU
that these two exceptions present no issue that the Judge did not
consider and address in his Decision. In the Authority's view, such
exceptions are without merit.
The Authority also concludes that the Respondent's final exception is
without merit. Thus, the language contained in the parties' collective
bargaining agreement concerning "formal discussions" does not constitute
a clear and unmistakable waiver of the NTEU'S section 7114(a)(2)(A)
right to have an opportunity to be represented at a formal discussion.
Such a statutory right must be consciuosly yielded before the Authority
will defer to the parties' collective bargaining agreement. /2/
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms these rulings. The Authority has considered
the Judge's Decision, the Respondent's exceptions to the Judge's finding
of violation, the positions of the parties and the entire record, and
adopts the Judge's findings, conclusions, and recommended Order. We
therefore conclude that the Respondent violated section 7116(a)(1) and
(8) of the Statute by preventing the Charging Party's representative
from speaking at the April 6, 1984 formal discussion, within the meaning
of section 7114(a)(2)(A), thus failing to comply with its obligations
under that provision. Noting that no exceptions were filed, we also
conclude that the Respondent did not fail to comply with section
7114(a)(2)(A) of the Statute in violation of section 7116(a)(1), (5) and
(8) with respect to the April 5, 1984 meeting conducted by the
Respondent. Finally, we conclude that the Respondent did not violate
section 7116(a)(5) with respect to the April 6, 1984 formal discussion.
Accordingly, these aspects of the complaint shall be dismissed.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, it is
ordered that the U.S. Nuclear Regulatory Commission shall:
1. Cease and desist from:
(a) Holding or conducting formal discussions within the meaning of
section 7114(a)(2)(A) of the Statute with bargaining unit employees
without permitting the exclusive bargaining representative, the National
Treasury Employees Union, an opportunity to be represented at such
formal discussions.
(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) Post at its facilities 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 an authorized official and shall be
posted and maintained 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
ensure that such Notices are not altered, defaced, or covered by any
other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with it.
IT IS FURTHER ORDERED that the remaining allegations of the complaint
in Case No. 3-CA-40346 be, and they hereby are, dismissed.
Issued, Washington, D.C., May 12, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, 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 hold or conduct formal discussions within the meaning of
section 7114(a)(2)(A) of the Statute with bargaining unit employees
without permitting the exclusive bargaining representative, National
Treasury Employees Union, an opportunity to be represented at such
formal discussions.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
(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 of the Federal Labor Relations Authority, Region III,
whose address is: 1111-18th Street, N.W., Room 700, P.O. Box 33758,
Washington, D.C. 20033-0758, and whose telephone number is: (202)
653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-40346
U.S. NUCLEAR REGULATORY COMMISSION
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Marvin L. Itzkowitz, Esquire
Dennis C. Dambly, Esquire
For the Respondent
Jim Thomas
For the Charging Party
Philip Boyer, Esquire
Bruce D. Rosenstein, Esquire
For the General Counsel
Federal Labor Relations Authority
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101 et seq., 92 Stat. 1191 (hereinafter referred to as the
Statute) and the Rules and Regulations of the Federal Labor Relations
Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410 et seq.
An unfair labor practice charge was filed on April 24, 1984 by
National Treasury Employees Union (hereinafter called NTEU and the
Union) alleging that the United States Nuclear Regulatory Commission
(hereinafter called NRC and the Respondent) violated the Statute. Based
upon the foregoing the General Counsel of the FLRA, by the Regional
Director of Region 3, issued a Complaint and Notice of Hearing on July
27, 1984 alleging that NRC violated Sections 7116(a)(1), (5) and (8) of
the Statute by holding two formal discussions within the meaning of
Section 7114(a)(2)(A) of the Statute without, in one case, notifying the
NTEU of the discussion and, in the other, without permitting the Union
to participate in the discussion. Respondent filed a timely Answer
denying it had violated the Statute.
A hearing was conducted before the undersigned in Washington, D.C.
NRC, NTEU and General Counsel of the FLRA were represented and afforded
full opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence, to argue orally and to file post-hearing briefs.
NRC and General Counsel of the FLRA argued orally and NRC filed a post
hearing brief, which has been fully considered.
Based upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following:
Findings of Fact
At all times material herein NTEU was the collective bargaining
representative for a nationwide unit of NRC's professional and
non-professional employees and WG employees, with certain exclusions,
not here relevant. The employees that are the subject of this case are
within the unit described above.
Prior to a reorganization that took place in April of 1984 the NRC
Office of Nuclear Research was divided into six divisions, one of which
was the Administration and Resource Control Staff, /3/ headed by
Director Francis P. Gillespie. Each division was in turn subdivided
into branches. Gillespie was the chief administrative officer for the
Office of Nuclear Research and his division included personnel, resource
allocation and space allocation responsibilities.
At all times material NRC and NTEU were parties to a collective
bargaining agreement covering the employees in the nationwide unit.
Section 4.2 of the contract states that notice of formal discussions
will be given to the NTEU chapter president or his designee. At NRC the
Union has designated stewards in the various facilities to receive
notices of formal discussions and, in the past, the practice had been to
notify the stewards in each facility of formal discussions. /4/
In the Spring of 1984 Gillespie and his division were in the process
of planning and coordinating a reorganization of the Office of Nuclear
Research. Early in April, before meetings held on April 5 and 6, 1984,
Gillespie sent notifications and detailed information to the affected
employees and to the Union, concerning the reorganization of the Office
of Nuclear Research.
All the employees in all the divisions, except the Administration and
Resources Control Staff, were notified in writing that at scheduled
times on April 6, 1984 each division would meet separately and Gillespie
would explain the reorganization. The notice stated that "all personnel
are requested to attend". Also Union Steward and Chapter Vice-President
Rene Audette received reorganization charts and a list of all employees,
their grades, if the employees would be "impacted" by the reorganization
and, if a "0" is next to an employee's name, that the employee's
position would not be filed if the position became vacant.
Gillespie, by the memoranda dated April 5, 1984 described above,
advised 5 divisions within the Research Office of the April 6, 1984
meetings to discuss the reorganization. He had neglected to schedule
such a meeting for his own Administration and Resource Control Staff
because it had been intimately involved with the reorganization.
Gillespie became aware of the oversight during the morning of April 5,
1984 and decided to have a meeting with his staff that morning to
explain the organization. He told his secretary Betty Cianci and his
two branch chiefs about the meeting and told Cianci to talk to Union
Steward Rene Audette to see if he had any objection to such a meeting.
At about 9:45 AM, Cianci went to Audette's place of work with a
package containing the staffing plan and related papers and advised him
of Gillespie's oversight to notify his own staff and that Gillespie
wanted to have a meeting with his staff at about 11:00 AM. Audette
indicated that such a meeting was no problem and it could proceed. /5/
Audette is not, professionally, assigned to Administration and Resource
Control Staff. /6/ Cianci then advised Gillespie that Audette had no
objection to the meeting. Gillespie instructed Cianci to call the
secretaries in the Administration and Resource Control Staff and have
them tell the employees that there was to be a meeting at 11:00 AM in
room 1133 of the Willstee Building concerning the reorganization and the
material about the reorganization that had already been distributed.
Some of the employees in the Administration and Resource Control Staff
were located in the Willstee Building in Silver Spring, where the
meeting was to be held, and others were located in other buildings
somewhat nearby.
The meeting of the Administration and Resource Control Staff was held
at about 11:00 AM in room 1133 of the Willstee Building. Present at the
meeting was Gillespie, who chaired it, the two branch chiefs, and the
section chiefs. About 20 of the approximately 22 employees in the staff
attended. No NTEU representative was present at the meeting.
Although Respondent's witnesses testified that the meeting was
"voluntary", there is no indication that the employees were told that it
was voluntary and that they need not attend, rather, the record
establishes that they were informed that there would be a meeting over
which Gillespie would preside.
Gillespie chaired the April 5 meeting. He described the
reorganization and stated that nobody on his staff would lose his job,
although a couple would be physically moved from one nearby building to
the Willstee Building. He also stated that the technical divisions
would be reduced in number from five to four. Gillespie referred to the
reorganization description that had been distributed to employees.
Gillespie then asked if there were any questions. No questions were
asked. Gillespie instructed the employees to transmit comments throught
the Union. The meeting took about 10 minutes.
One of the meetings held on April 6, 1984 involved the Accident
Evaluation Division. Martin Levy attended this meeting as the NTEU
representative. The meeting was held in room 1133, a conference room,
of the Willstee Building. The employees were notified of this meeting
by the memorandum to employees described above. The meeting started at
about 12:45 PM. Present at the meeting were Gillespie, Accident
Evaluation Division Chief Bassett, Labor Relations Specialist Theresa
Spearman and two or three branch chiefs. About 30 to 40 employees in
the bargaining unit were also present. There were virtually all the
employees of the division. NTEU representative Martin Levy also
attended. Prior to the meeting Levy had received from NRC a copy of the
staffing plan for the reorganized office.
Gillespie chaired the meeting. He did not introduce Levy. Gillespie
informed the employees of the reorganization and stated that there would
be no adverse actions or any adverse effect upon employees, their grades
or promotion potential. Gillespie, in referring to the staffing plan, a
copy of which had been previously supplied to the employees, stated that
a zero next to an employee's name didn't mean anything. He stated it
was simply a bookkeeping method of providing that a position would not
be filled once it was vacated. Gillespie finished his statement and
then asked for questions. None were forthcoming. Gillespie advised the
employees that if they had any comments or suggestions they should route
them through NTEU. Levy rose and identified himself by name and NTEU
position. Levy began to discuss the zeros in the staffing plan. As
soon as he began to speak, Levy was interrupted by Spearman who stated
that full-time allotment was not a subject of the reorganization and
Levy would not be permitted to speak about it. Levy stated that it was
the first time NTEU and the employees had learned about it and Gillespie
brought it up so it was a matter of the reorganization. Levy again
tried to address this matter and was interrupted again by Spearman. She
interrupted Levy five or six times as he attempted to address the zeros
in the staffing pattern. Gillespie and the other management officials
sat there and said nothing. Levy then dropped that matter and told the
employees that there were quality groups in each division and they
advised the Union as to bargaining positions. Again Spearman
interrupted Levy about three times saying this was not something covered
by the reorganization and prevented Levy from explaining the quality
groups. Levy, because he was not permitted to discuss the two matters
described above, finally just told the employees that those who have a
problem should see the Union steward. /5/
Discussion and Conclusions of Law
Section 7114(a)(2)(A) of the Statute provides as follows:
Section 7114. Representation rights and duties
. . . .
(a)(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at --
(A) any formal discussion between one or more representatives
of the agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy
or practice or other general condition of employment(.)
In the instant case it is clear that the April 5 and 6, 1984 meetings
dealt with the reorganization of the Nuclear Research Office which
involved the physical reassignment of employees from one facility to
another. The reorganization involved and affected a "personnel policy
or practice or other general condition of employment" within the meaning
of Section 7114(a)(2)(A) of the Statute. Also, despite NRC's contention
of the contrary, the two meetings were "discussions" within the meaning
of Section 7114(a)(2)(A) of the Statute. Department of Defense,
National Guard Bureau, Texas Adjutant General's Department, 149th TAC
Fighter Group, Kelly Air Force Base, 15 FLRA NO. 111 (1984). In this
regard, it is further noted that at the conclusion of each meeting
Gillespie invited questions from the employees present.
It is concluded that both the April 5 and 6, 1984 discussions were
"formal" within the meaning of Section 7114(a)(2)(A) of the Statute.
The April 5, 1984 meeting was held in a conference room and two or three
levels of supervisors were present, including Gillespie the Director of
the staff, two branch chiefs and section chiefs. Further, although the
employees did not recieve advance written notification of the meeting,
this was admittedly an oversight on NRC's part; Respondent had intended
to hold a series of meetings to discuss the reorganization in each of
the divisions and the April 5 meeting was to be one of this series of
meetings. Although there was no "agenda" as such, when notified of the
meeting the employees were told it was to discuss the reorganization.
Thus there was in fact an agenda. This is especially so because, in
advance of the meeting, the employees had received copies of the
reorganization plan. Finally, although the meeting was supposedly
voluntary, the employees when told about the meeting, were not told it
was voluntary and that they need not attend. In the circumstances here
present, when employees were told that there would be a meeting of the
Administration and Resource Control Staff concerning the reorganization
and chaired by the Director of the staff, such a meeting can hardly be
deemed voluntary, unless the employees were specifically so informed,
which was not the case herein. Further, substantially all the employees
on the staff attended the meeting. In light of the foregoing, I
conclude that the April 5 meeting was a formal discussion within the
meaning of Section 7114(a)(2)(A) of the Statute. See United States
Customs Service, Region VIII, San Francisco California, 18 FLRA NO. 27
(1985), and the cases cited therein.
It is further concluded that the April 6, 1984, meeting was "formal"
within Section 7114(a)(2)(A) of the Statute. In addition to the
presence of all of the indicia present in the April 5 meeting discussed
above, the employees of the Accident Evaluation Division were notified
in advance, in writing, of the meeting and that it would concern the
reorganization. Again the written announcement of the meeting did not
state it was a voluntary meeting. Further in addition to Gillespie,
present was Director of the Division of Accident Evaluation Sam Bassett,
Labor Relations Specialist Spearman and two or three branch chiefs. In
light of the foregoing it is concluded the April 6, 1984 meeting of the
Accident Evaluation Division was a formal discussion within the meaning
of Section 7114(a)(2)(A) of the Statute. See, United States Customs
Service, Region VIII, San Francisco, California, supra, and the cases
cited therein.
With respect to the April 5 meeting NRC notified Union Steward
Audette of the meeting and NTEU chose not to attend. NRC fulfilled its
obligations under Section 7114(a)(2)(A) of the Statute when it notified
a Union representative of the meeting. General Counsel of the FLRA's
argument that notice to Audette was not sufficient is rejected. Section
4.2 of the collective bargaining agreement provides that the Union can
designate those to receive notice of formal meetings. The record
establishes that, in writing and under past practice NTEU stewards were
the appropriate persons to receive such notice of meetings.
Accordingly, I find with respect to the April 5 meeting NRC did meet all
its obligations under Section 7114(a)(2)(A) of theStatute and therefore
it did not violate the Statute with respect to the April 5, 1984
meeting.
At the conclusion of the April 6 meeting of the Division of Accident
Evaluation the NTEU Representative, Levy, who had received notice of the
meeting, was effectively prevented by Spearman from speaking to the
employees and commenting on the meaning and effect of the staffing plan
and about the quality groups. These were both matters discussed,
directly or indirectly by Gillespies. Gillespie discussed the meaning
of the "0" next to employees names on the staffing plan, one of the
matters Levy attempted to address. Further Gillespie stated that
employees should channel their comments to management through the NTEU.
The quality groups are the means for the employees to communicate with
NTEU about the local working conditions.
Insofar as Section 7114(a)(2)(A) of the Statute provides that a union
should be represented at formal discussions, it means more than merely
to be present, it also means the right to comment, speak and to make
statements. I adopt the discussion and reasoning set forth in
Department of the Treasury, Internal Revenue Service, Clevland, Ohio
District Office, OALJ 83-60 (1983). The FLRA has held that such union
participation does not, however, entitle the Union to take charge of the
proceedings. Internal Revenue Service, Fresno Service Center, Fresno,
California, 7 FLRA 371 (1981). It is concluded, in light of the
foregoing, NRC interfered with NTEU's rights to be represented at a
formal disucssion conducted on April 6, 1984 in the Division Accident
Evaluation, when it effectively prevented Levy from Speaking. In so
doing NRC interfered with NTEU's rights under section 7114(a)(2)(A) of
the Statute "to be represented at a formal discussion." Accordingly, I
conclude that Respondent violated Section 7116(a)(1) and (8) of the
Statute, /8/ and 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 orders that U.S. Nuclear Regulatory Commission shall:
1. Cease and desist from:
(a) Holding or conducting formal discussions with bargaining
unit employees without permitting the exclusive bargaining
representative, the National Treasury Employees Union, to be
represented at such formal discussions.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of 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) Post as its facilities 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 an
authorized official and shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including all
bulletin boards and other places where notices are customarily
posted. Reasonable steps shall be taken to insure that said
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 of Region 3, Federal
Labor Relations Authority, 1111 18th Street, N.W., Room 700, P.O.
Box 33758, Washington, D.C. 20033-0758, in writing, within 30 days
from the date of this Order as to what steps have been taken to
comply with this Order.
/s/ SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: June 26, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) The Judge dismissed the section 7116(a)(5) aspect of this
allegation, citing Department of Defense National Guard Bureau, Texas
Adjutant Guard's Department, 149th TAC Fighter Group (ANG) (TAC), Kelly
Air Force Base, 15 FLRA 529, 533 (1984), in which the Authority
concluded that section 7114(a)(2)(A) of the Statute does not itself give
rise to an obligation to negotiate and cannot, therefore, form the basis
of a section 7116(a)(5) violation.
(2) See, e.g., U.S. Customs Service, Region VIII, San Francisco,
California, 18 FLRA NO. 51 (1985).
(3) After the reorganization the Administration and Resource Control
Staff had its name changed to the Policy, Planning and Control Staff.
(4) In a communication to "NRC Office Directors and Regional
Administrators" in March 1982, NTEU Chapter 208 President Jim Thomas
advised, with respect to formal discussions, " . . . In most cases,
verbal notice to the steward assigned to your area will be sufficient
toward meeting this (Section 7(a)(2) of the Statute) requirement."
(5) Audette's recollection is less clear and reliable than Cianci's.
He does not recall being advised of their April 5 meeting, but does
recall another April 5 meeting that was apparently held on April 6.
Generally, I credit Cianci's recollection of the events in so far as
notifying Audette of the April 5 meeting.
(6) The practice had been that at meetings the Union representat-ve
should not be assigned to the group involved in the meeting.
(7) In setting forth this description of the April 6, 1984 meeting I
credit the versions of Levy and the other employees who testified and I
do not credit Spearman, Gillespie and the other NRC witnesses. I find
Levy's recollections were precise and consistent with the surrounding
circumstances. I find the NRC witnesses testimony was less reliable and
precise.
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-MAAGEMENT
RELATIONS
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT hold or conduct formal discussions with bargaining unit
employees without permitting the exclusive bargaining representative,
National Treasury Employees Union, to be represented at such formal
discussions.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
(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 of the Federal Labor Relations Authority, Region 3,
whose address is: 1111-18th Street, N.W., Room 700, P.O. Box 33758,
Washington, D.C. 20033-0758, and whose telephone number is: (202)
653-8500.