CWA's Position

In its October 1 comments, CWA strongly argues that it is entitled to a decision on the existing record, and that in any event, the record on three principal issues is not stale.

As a general matter, CWA complains that the ALJ Ruling unfairly places the burden on it as complainant to demonstrate that the existing record is still valid:

"The approach suggested in the [ALJ Ruling] is the reverse of that which it should be. In an adjudicatory proceeding, the deciding official makes a determination based on the record. In the event that the decision proves, in any respect, to be impracticable because of a change in circumstances, any affected party can raise that issue in a post-hearing proceeding. The [ALJ Ruling] improperly seeks to reverse this process by adopting a presumption of invalidity and requiring the Complainant, which has already met its burden of establishing a record, to assume the additional burden of proving the record's continued validity." (CWA Comments, p. 4.)

In addition to this general objection, CWA argues that the record clearly remains valid on the issues of remote monitoring, the checklists used by Pacific for monitoring, and the training Pacific gives its operators and service representatives on monitoring. On the first of these issues, CWA states:

"Complaint has alleged, and believes that it has demonstrated, that ... remote monitoring violate[s] the Commission's prohibition against monitoring from a location that is not at or near the station of the monitored employee, and the prohibition against monitoring in such a way as to conceal background sounds that notify the participants that the call is being monitored. This practice still exists. In fact, because of the pendency of this matter before the Commission, the parties have refrained from negotiations that would have changed Defendant's practices in this regard." (Id. at 6.)

CWA also contends that the record concerning Pacific's checklists remains pertinent. On this question, CWA states:

"Complainant has maintained that Defendant used monitors other than the supervisor of the monitored employee to conduct supervisory monitoring. As a result, the monitor would impermissibly transmit the content of the monitored conversation to the supervisor. Although the Commission required the creation of a check list form that would prevent the transmission of detailed information about call content, Defendant instead uses forms that call for narrative descriptions of the calls and for much more detail than required for Defendant's purposes. Complainant maintains that this practice has remained unchanged." (Id.)

CWA concludes by noting that the record also remains timely on the issue of training, because the 1993 hearing established that Pacific's training "fails to provide adequate information on restrictions applicable to monitoring." CWA asserts that Pacific's training on these issues remains inadequate. (Id.)