Department of Defense, United States Army, Fort Sam Houston, Texas (Respondent) and American Federation of Government Employees, Local Union 2154, AFL-CIO (Complainant) 

 



[ v01 p588 ]
01:0588(68)CA
The decision of the Authority follows:


 1 FLRA No. 68
 
 DEPARTMENT OF DEFENSE,
 UNITED STATES ARMY
 FORT SAM HOUSTON, TEXAS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL UNION 2154, AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 63-7885(CA)
 
                            DECISION AND ORDER
 
    ON MARCH 16, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY ISSUED
 HIS RECOMMENDED DECISION AND ORDER 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.  NO EXCEPTIONS WERE FILED TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
 REGULATIONS (44 F.R. 7).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
 THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS
 ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
 CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATION.  /1A/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 63-7885(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 15, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    MR. ERNEST CANTU
 
    BUSINESS AGENT
 
    LOCAL 2154
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, AFL-CIO
 
    HEADQUARTERS FORT SAM HOUSTON
 
    P.O. BOX 8241
 
    WAINWRIGHT STATION, TEXAS 78208
 
    MR. DOYLE HUNTSMAN, ADVISER
 
    6061 NORTHWEST EXPRESSWAY
 
    SAN ANTONIO, TEXAS 78201
 
    MRS. ADDIE VALADEZ, ADVISER
 
    637 EAST PARK AVENUE
 
    SAN ANTONIO, TEXAS 78212
 
                            FOR THE COMPLAINANT
 
    MAJOR JULIA A. BELT
 
    CHIEF, ADMINISTRATIVE LAW BRANCH
 
    OFFICE OF THE STAFF JUDGE ADVOCATE
 
    HEADQUARTERS, FORT SAM HOUSTON
 
    FORT SAM HOUSTON, TEXAS 78234
 
                            FOR THE RESPONDENT
 
    BEFORE:  WILLIAM B. DEVANEY
 
    ADMINISTRATIVE LAW JUDGE
 
    3.  ARTICLE XVI, LEAVE, OF THE PARTIES' CURRENT AGREEMENT (COMP.
 EXH. 1) PROVIDES, IN PART AS FOLLOWS:
 
    "16-1.  LEAVE WILL BE ADMINISTERED IN ACCORDANCE WITH FORT SAM
 HOUSTON REGULATION 690-14.
 
   .          .          .          .
 
 
    "16-3 . . . NORMALLY, THE EMPLOYEE WILL SUBMIT HIS SCHEDULED LEAVE
 REQUEST (TO HIS
 
    IMMEDIATE SUPERVISOR) DURING THE FIRST SIXTY DAYS OF THE CALENDAR
 YEAR.  ONCE AN EMPLOYEE'S
 
    CHOICE IS DISTURBED OR IF ANOTHER EMPLOYEE WILL NORMALLY BE PERMITTED
 TO CHANGE HIS SELECTION ONLY IF WORKLOAD PERMITS AND NO OTHER EMPLOYEE'S
 CHOICE IS DISTURBED OR IF ANOTHER EMPLOYEE
 
    AGREES TO TRADE.  "(COMP. EXH. 1).
 
    4.  FORT SAM HOUSTON REGULATION 690-14 PROVIDES, IN PART, AS FOLLOWS:
 
    "3.  POLICY.
 
    "A.  GENERAL.  NORMALLY, ALL TYPES OF LEAVE MUST BE REQUESTED BY THE
 EMPLOYEE, IN WRITING
 
    WHERE APPROPRIATE, AND APPROVED BY THE SUPERVISOR . . . " /1/
 
    "5.  GRANTING ANNUAL LEAVE . . .
 
    "A.  SCHEDULING.  SUPERVISORS WILL PREPARE LEAVE SCHEDULES IN WRITING
 NOT LATER THAN 1
 
    APRIL OF EACH YEAR FOR EMPLOYEES UNDER THEIR SUPERVISION.
 
    . . . SCHEDULES MAY BE CHANGED FOR EMPLOYEE'S CONVENIENCE . .  . "
 
    "6.  ADVANCED ANNUAL LEAVE.
 
    "A.  SUPERVISORS MAY APPROVE REQUESTS FOR ADVANCED ANNUAL LEAVE WHEN
 JUSTIFIED IN WRITING
 
    BY EMPLOYEE . . . "
 
    "8.  RESTORATION OF FORFEITED ANNUAL LEAVE.
 
    "(2) THE SECOND FACTOR DEALS WITH THE STATUTORY REQUIREMENT THAT THE
 ANNUAL LEAVE MUST HAVE
 
    BEEN 'SCHEDULED IN ADVANCE.' THE DECISION TO SCHEDULE THE LEAVE MUST
 HAVE BEEN MADE IN
 
    WRITING BEFORE THE START OF THE THIRD BI-WEEKLY PAY PERIOD PRIOR TO
 THE END OF THE LEAVE
 
    YEAR." (COMP. EXH. 2)
 
    5.  ON OCTOBER 25, 1974, CIVILIAN PERSONNEL BULLETIN NO. 37 WAS
 ISSUED TO EXPLAIN PROVISIONS FOR RESTORATION OF FORFEITED ANNUAL LEAVE.
 THE BULLETIN EMPHASIZED THE UNLESS "REQUESTS, SUPPORTED BY THE NECESSARY
 DWCUMENTATION, RESTORATION CANNOT BE APPROVED." (RES.  EXH. 2);  "(2)
 THE SECOND FACTOR DEALS WITH THE STATUTORY REQUIREMENT THAT THE ANNUAL
 LEAVE MUST HAVE BEEN 'SCHEDULED IN ADVANCE.'";  APPENDIX B TO BULLETIN
 NO. 37 SET FORTH "PROCEDURES FOR REQUESTING RESTORATION OF FORFEITED
 ANNUAL LEAVE" AND FORMATS 1, 2 AND 3 WERE ATTACHED AS INCLOSURES 1, 2
 AND 3 TO APPENDIX B.  FORMAT I (BASED ON ADMINISTRATIVE ERROR) PROVIDED
 "DOCUMENTS SUPPORTING THE ABOVE SITUATION ARE ATTACHED;" FORMAT II
 (BASED ON ILLNESS) PROVIDED "SF 71 (OR OTHER DOCUMENTS) ARE ATTACHED TO
 SUPPORT THE SCHEDULING AND RESCHEDULING OF LEAVE DESCRIBED ABOVE;" AND
 ?FORMAT III (BASED ON EXIGENCY OF PUBLIC BUSINESS) PROVIDED "SF 71 (OR
 OTHER DOCUMENTS) ARE ATTACHED AS INCLOSURES 2 AND 3 TO SUPPORT THE
 SCHEDULING AND RESCHEDULING DESCRIBED ABOVE." (RES. EXH. 2)
 
    6.  THE SAME PROCEDURES FOR REQUESTING RESTORATION OF FORFEITED
 ANNUAL AND THE SAME FORMATS I, II AND III AS FIRST ISSUED AS PART OF
 BULLETIN NO. 37, IN 1974, ARE INCORPORATED AS APPENDIX B TO FSH REG.
 690-14 (COMP. EXH. 2).
 
    7.  MS. BETTY R. MIZE, CHIEF, PROPERTY CONTROL BRANCH AND ASSISTANT
 SUPPLY DIVISION CHIEF, TESTIFIED THAT IN THE SUPPLY DIVISION SOME
 SUPERVISORS PASS AROUND TO THEIR EMPLOYEES A LONG SHEET WHICH HAS MONTHS
 ACROSS THE TOP AND EACH EMPLOYEE WILL ENTER THE TIME THAT THEY WANT TO
 TAKE ANNUAL LEAVE.  MR. FELIPE REYNA, WHO HAS BEEN EMPLOYED IN THE
 SUPPLY DIVISION SINCE 1971, TESTIFIED THAT "WE SCHEDULE THE LEAVE
 THROUGH THE WHOLE YEAR" AND WHEN ASKED IF THIS WAS DONE IN WRITING,
 RESPONDED "SURE DO.  EVERYBODY DOES." WHEN ASKED AGAIN IF TO HIS
 KNOWLEDGE WAS HE REQUIRED TO SCHEDULE HIS LEAVE IN WRITING, MR. REYNA
 AGAIN RESPONDED "YES, WE ARE."
 
    8.  LEAVE SCHEDULES ARE PREPARED IN A SIMILAR MANNER BY SUPERVISORS
 FOR EMPLOYEES IN THE BARGAINING UNIT OUTSIDE THE SUPPLY DIVISION, WITH
 EACH EMPLOYEE SUBMITTING A REQUEST, EITHER IN WRITING OR ORALLY, TO HIS
 OR HER SUPERVISOR AND FROM THIS INFORMATION A LEAVE SCHEDULE WAS
 PREPARED BY EACH SUPERVISOR.
 
    9.  PRIOR TO APRIL, 1977, THE PRACTICE IN THE SUPPLY DIVISION WAS
 THAT RESCHEDULING OF LEAVE WAS DONE VERBALLY.  THAT IS, EACH EMPLOYEE
 WOULD TELL HIS, OR HER, SUPERVISOR IF A CHANGE OF HIS, OR HER, LEAVE
 SCHEDULE WERE DESIRED AND THE SUPERVISOR WOULD MAKE THE APPROPRIATE
 CHANGE ON THE LEAVE SCHEDULE.
 
    10.  PRIOR TO APRIL, 1977, THE PRACTICE OUTSIDE THE SUPPLY DIVISION
 WAS THAT CHANGES, OR REQUESTS TO RESCHEDULE, LEAVE WERE MADE IN WRITING.
  MR. HAROLD B. BUCKLEY, RESPONDENT'S CIVILIAN PERSONNEL OFFICER,
 TESTIFIED THAT CHANGES OF LEAVE SCHEDULES IS " . . .  REQUESTED, AND
 RESCHEDULED IN WRITING." WHEN ASKED WHETHER, TO HIS PERSONAL KNOWLEDGE,
 LEAVE WAS EVER RESCHEDULED IN WRITING PRIOR TO APRIL OF 1977, MR.
 BUCKLEY REPLIED:
 
    "A.  YES, IT WAS THE PRACTICE WAS SUBSTANTIALLY, I'D CALL IT." (TR.
 102).
 
    MR. BUCKLEY STATED THAT THE CIVILIAN PERSONNEL OFFICE HAD NEVER
 ESTABLISHED ANY PARTICULAR FORMAT FOR A LEAVE REQUEST OR A REQUEST TO
 RESCHEDULE LEAVE.  HE TESTIFIED,
 
    "A.  NO.  IT'S BEEN OUR WE'VE NEVER ATTEMPTED TO FORMALIZE THE SYSTEM
 OF REQUESTING.
 
    "IN OTHER WORDS, WE NEVER PUT OUT ANY INSTRUCTIONS TO THE WORKFORCE
 THAT HAD-- THAT IT HAD
 
    TO BE IN ESTABLISHED FORMAT.
 
    "THE PRACTICE HAS BEEN ON FORT SAM HOUSTON THAT DOCUMENTATION CAME IN
 MANY DIFFERENT FORMS,
 
    AND WE SAW NO NEED TO STANDARDIZE IT, NOR DID WE ATTEMPT TO DO SO."
 (TR. 106)
 
    "A.  WELL, AS I MENTIONED TO YOU, THE DOCUMENTATION THAT WAS USED TO
 REQUEST AND RESCHEDULE
 
    LEAVE AND TO CHANGE IT IN THE PAST, WAS DONE IN MANY DIFFERENT
 FORMATS.
 
    "OUR ADVISE TO MANAGEMENT PEOPLE WAS TO HAVE EVIDENCE OF IT IN
 WRITING, OF THE REQUEST,
 
    HAVE THE APPROVAL IN WRITING SO THAT THEY HAVE NECESSARY SUPPORT
 DOCUMENTS FOR ANY WAIVERS AND
 
    REQUESTS FOR RESTORATION." (TR. 107)
 
    WHEN ASKED THE EXTENT OF HIS PERSONAL KNOWLEDGE OF HOW THE
 RESCHEDULING OF LEAVE IS HANDLED BY DIFFERENT SUPERVISORS, MR. BUCKLEY
 STATED:
 
    "THE WITNESS:  WELL, I WOULD SAY THAT, THAT MOST OF THE INSTANCES I'M
 AWARE OF, IF IT WERE
 
    A CHANGE OF A COUPLE OF HOURS, OR MAYBE ONE DAY, IT MIGHT BE HANDLED
 ORALLY.
 
    "IF IT WAS A CHANGE OF ANY SIGNIFICANT, WE WOULD NORMALLY-- I THINK
 MOST SUPERVISORS WOULD
 
    EXPECT THE EMPLOYEE TO WRITE THEM A NOTE TO RESCHEDULE THEIR LEAVE.
 
   .          .          .          .
 
 
    ". . . WELL, FROM-- FROM BEING FAMILIAR WITH WHAT MOST OF OUR
 PERSONNEL PRACTICES, ARE, I
 
    WOULD SAY, FROM BEING FAMILIAR WITH THE SYSTEM IN THE PERSONNEL
 OFFICE, BECAUSE THAT IS THE
 
    WAY THE SYSTEM IS." /2/ (TR. 128-129).
 
    I AM AWARE THAT MS. ADDIE B. VALADEZ, PRESIDENT OF LOCAL 2154, WHO
 WORKS IN FINANCE AND ACCOUNTING, FIRST TESTIFIED:
 
    "Q . . . TO YOUR KNOWLEDGE IS LEAVE SCHEDULED OR RESCHEDULED IN
 WRITING WITHIN THE
 
    BARGAINING UNIT?
 
    "A TO MY KNOWLEDGE, WITH THE EXCEPTION OF THE DIO SITUATION WHICH WE
 ARE DISCUSSING, NO,
 
    THERE IS NOT.
 
    "Q YOU KNOW OF NO SECTION, WHICH IS WITHIN YOUR BARGAINING UNIT IN
 WHICH THE EMPLOYEES
 
    SCHEDULE LEAVE IN WRITING?
 
    "A I KNOW OF NONE.  (TR. 81) (SEE, ALSO, TR. 89).
 
    LATER, AS TO SCHEDULING LEAVE, MS. VALADEZ TESTIFIED:
 
    " . . . IT CAN BE DONE EITHER ORALLY, OR IT CAN BE DONE IN WRITING
 
   .          .          .          .
 
 
    " . . . IN MY PARTICULAR CASE, I HAVE TO SUBMIT MINE IN WRITING, YOU
 SEE, BECAUSE I WAS NOT
 
    THERE TO SUBMIT IT PRIOR TO THE TIME THAT WAS REQUIRED IN THE
 CONTRACT." (TR. 90)
 
   .          .          .          .
 
 
    "IN MY CASE, IT WAS BOTH, ORALLY, AND IN WRITING.
 
    "AND I KNOW OF OTHERS THAT DO SUBMIT IT IN WRITING . . . " (TR. 92).
 
    HOWEVER, MS. VALADEZ DID TESTIFY THAT SHE MADE ONLY ORAL REQUESTS TO
 HER SUPERVISOR TO RESCHEDULE LEAVE (SEE, TR. 93).
 
    HAVING EXAMINED THE TESTIMONY AND EVIDENCE CAREFULLY, I FULLY CREDIT
 MR. BUCKLEY'S TESTIMONY THAT THE PRACTICE IN THE BARGAINING UNIT, EXCEPT
 IN THE SUPPLY DIVISION, WAS THAT REQUESTS TO CHANGE, OR RESCHEDULE,
 ANNUAL LEAVE MUST BE MADE IN WRITING, ALTHOUGH NO PARTICULAR FORMAT WAS
 REQUIRED, IF THE CHANGE WERE FOR MORE THAN ONE DAY OF ANNUAL LEAVE.  NOT
 ONLY DID MR.  BUCKLEY CREDIBLY, AND DIRECTLY, TESTIFY THAT THIS WAS THE
 PRACTICE, BUT HIS TESTIMONY IS FULLY SUPPORTED BY THE PROVISION OF
 SECTION 3 OF FSH REGULATION 690-14 (MARCH 9, 1976) (COMP. EXH. 2);  BY
 THE FACT THAT COMPLAINANT MADE NO OBJECTION TO SECTION 3 OF THE 1976
 REGULATION BECAUSE "IT WAS-- HAD BEEN ESTABLISHED PRACTICE IN THE PAST;"
 BY BULLETIN NO. 37, ISSUED BY MR. BUCKLEY AS CIVILIAN PERSONNEL OFFICER
 ON OCTOBER 25, 1974;  AND BY THE "MESSAGES AND KEY NOTES," NUMBER 6-77,
 ISSUED BY MR.  BUCKLEY TO SUPERVISORS AND MANAGEMENT OFFICIALS ON MARCH
 10, 1977, (COMP. EXH. 20).  MS.  VALADEZ'S TESTIMONY TO THE CONTRARY
 CONSISTED OF BROAD AND EXTRAVAGANT ASSERTIONS WHICH PROVED NOT TO BE
 WHOLLY ACCURATE.  ACCORDINGLY, I DO NOT CREDIT HER DENIAL AS TO THE
 PREVAILING PRACTICE OF REQUIRING THE RESCHEDULING OF LEAVE IN WRITING IN
 THE BARGAINING UNIT OUTSIDE THE SUPPLY DIVISION EXCEPT TO THE EXTENT
 THAT SHE, IN FINANCE AND ACCOUNTING, PERSONALLY MADE ORAL REQUESTS TO
 RESCHEDULE HER OWN ANNUAL LEAVE.
 
    11.  ON MARCH 10, 1977, MR. BUCKLEY ISSUED MESSAGES AND KEY NOTES TO
 REMIND SUPERVISORS AND MANAGEMENT OFFICIALS THAT "THE SCHEDULING AND, AS
 NECESSARY, RESCHEDULING OF THE ANNUAL LEAVE MUST BE IN WRITING" (COMP.
 EXH. 20) AS THE OFFICE OF CIVILIAN PERSONNEL HAD FOUND OVER A PERIOD OF
 SEVERAL YEARS THAT IN MANY CASES EMPLOYEES COULD NOT SHOW EVIDENCE THAT
 ANNUAL LEAVE HAD BEEN SCHEDULED IN ADVANCE AND, THEREFORE, REQUESTS FOR
 RESTORATION OF FORFEITED LEAVE, WHICH OTHERWISE HAVE BEEN GRANTED, HAD
 TO BE DENIED BECAUSE OF THE ABSENCE OF DOCUMENTATION.  AS MR. BUCKLEY
 TESTIFIED, THE MARCH 10, 1977, MESSAGES AND KEY NOTES, WAS A REMINDER OF
 THE KEY POINTS OF CIVILIAN PERSONNEL BULLETIN NO. 37, ISSUED OCTOBER 25,
 1974.  MR. BUCKLEY FURTHER TESTIFIED THAT THERE HAD BEEN NO CHANGE IN
 POLICY AS TO THE REQUIREMENTS FOR WRITTEN DOCUMENTATION AS STATED
 INITIALLY IN THE OCTOBER 25, 1974, BULLETIN.
 
    12.  THE SUPPLY DIVISION WAS NOT REQUIRING THAT REQUESTS TO
 RESCHEDULE ANNUAL LEAVE BE IN WRITING AND THE MESSAGES AND KEY NOTES OF
 MARCH 10, 1977, RESULTED IN A PROMPT RESPONSE BY MR. JOHN B. MORGAN,
 CHIEF OF THE SUPPLY DIVISION.
 
    FIRST, HE DECIDED THAT LEAVE RESCHEDULING REQUESTS SHOULD BE IN
 WRITING (COMP. EXH. 19);  AND SECOND, HE ADOPTED FOR FORMAT FOR THIS
 PURPOSE A FORM DEVELOPED BY MS.  PAULINE ROWE, CHIEF OF THE MATERIAL
 MANAGEMENT SECTION OF THE SUPPLY DIVISION (COMP. EXH. 3).  /3/ ALTHOUGH
 IT DOES NOT APPEAR THAT FORMS, AS DEVISED BY MS. ROWE, WERE EVER
 PREPARED, THE FORMAT WAS FOLLOWED (SEE, COMP. EXH. 15) AND AS MR.
 MCCARTY'S REQUEST OF APRIL 6, 1977 (COMP. EXH. 15), SHOWS, MR. ALANIZ
 RECOMMENDED APPROVAL, MS. ROWE CONCURRED AND MR. MORGAN APPROVED.
 
    13.  AFTER THE CHARGE WAS FILED (JULY 11, 1977) RESPONDENT IN
 SEPTEMBER 1977, DISCONTINUED USE OF THE "FORM" ALTHOUGH THE FORMAT WAS
 FOLLOWED ON DECEMBER 21, 1977 (COMP. EXH. 13).
 
    14.  ALTHOUGH NO PARTICULAR FORMAT HAS BEEN REQUIRED AFTER SEPTEMBER
 1977, LEAVE RESCHEDULING REQUESTS ARE REQUIRED TO BE IN WRITING (SEE,
 COMP. EXH. 14).
 
    15.  THERE WAS NO DISCUSSION WITH COMPLAINANT BEFORE MR. MORGAN
 DIRECTED THAT MRS. ROWE'S FORMAT BE USED IN THE SUPPLY DIVISION;  AND
 COMPLAINANT SUBSEQUENTLY REFUSED TO NEGOTIATE A FORM FOR THIS PURPOSE.
 
    16. THE CIVILIAN PERSONNEL OFFICE WAS NOT AWARE OF THE "FORM"
 PRESCRIBED FOR THE SUPPLY DIVISION UNTIL COMPLAINANT FILED THE CHARGE
 HEREIN.
 
    17.  MS. MIZE TESTIFIED THAT, NOTWITHSTANDING ONE OR MORE LEVELS OF
 APPROVAL IN THE SUPPLY DIVISION, THE DECISION OF THE EMPLOYEE'S
 IMMEDIATE SUPERVISOR CONTROLLED;  THAT IF A HIGHER SUPERVISOR WERE AWARE
 OF SOME PROJECT, FOR EXAMPLE, THAT SUPERVISOR WOULD GO TO THE EMPLOYEE'S
 IMMEDIATE SUPERVISOR AND ASK IF SUCH PROJECT HAD BEEN CONSIDERED IN
 APPROVING THE LEAVE AND IF IT HAD BEEN AND THE SUPERVISOR WAS SATISFIED
 THAT THE WORK COULD BE DONE, THEN THE RESCHEDULING OF THE LEAVE WAS
 APPROVED.  NO RESCHEDULED LEAVE APPROVED BY AN IMMEDIATE SUPERVISOR WAS
 EVER DISAPPROVED BY OTHER SUPERVISORS.
 
                                CONCLUSIONS
 
    THE COLLECTIVE BARGAINING AGREEMENT PROVIDES THAT LEAVE WOULD BE
 ADMINISTERED IN ACCORDANCE WITH FORT SAM HOUSTON REGULATION 690-14
 WHICH, IN TURN, PROVIDES THAT:  "NORMALLY, ALL TYPES OF LEAVE MUST BE
 REQUESTED BY THE EMPLOYEE, IN WRITING WHERE APPROPRIATE, AND APPROVED BY
 THE SUPERVISOR." AS EARLY AS 1974, EMPLOYEES AND SUPERVISORS WERE
 ADVISED OF THE IMPORTANCE OF SCHEDULING ANNUAL IN WRITING AND WERE
 SPECIFICALLY CAUTIONED THAT RESTORATION OF ANNUAL WAS DEPENDENT ON
 SATISFYING, INTER ALIA, THE STATUTORY REQUIREMENT THAT ANNUAL LEAVE MUST
 HAVE BEEN "SCHEDULED IN ADVANCE" AND EMPLOYEES AND SUPERVISORS WERE
 FURTHER CAUTIONED THAT THE DECISION TO SCHEDULE THE LEAVE MUST HAVE BEEN
 MADE IN WRITING BEFORE THE START OF THE THIRD BIWEEKLY PAY PERIOD PRIOR
 TO THE END OF TEE LEAVE YEAR (IT WAS MADE CLEAR THAT THIS INCLUDED
 "SCHEDULING, RESCHEDULING, OR USE OF ANNUAL LEAVE") (RES. EXH. 2).
 APPENDIX B TO THE OCTOBER 25, 1974, BULLETIN NO. 37 FURTHER EMPHASIZED
 WRITTEN DOCUMENTATION TO SUPPORT "THE SCHEDULING AND RESCHEDULING OF
 LEAVE" IN AN APPLICATION FOR RESTORATION OF FORFEITED ANNUAL LEAVE.
 APPENDIX B IS ALSO INCORPORATED AS APPENDIX B TO FSH 690-14.  ALTHOUGH
 FSH 690-14 WAS REVISED MARCH 9, 1976, THE RECORD IS CLEAR THAT THE
 PROVISION THAT "ALL TYPES OF LEAVE MUST BE REQUESTED BY THE EMPLOYEE, IN
 WRITING WHERE APPROPRIATE" WAS MERELY THE CONTINUATION OF AN EXISTING
 POLICY.
 
    FROM 1974, THE PRACTICE IN THE BARGAINING UNIT, EXCEPT THE SUPPLY
 DIVISION WHICH CONSTITUTES ABOUT 1/6TH OF THE BARGAINING UNIT OR ABOUT
 200 EMPLOYEES OUT OF 1200 EMPLOYEES IN THE BARGAINING UNIT, HAD BEEN
 THAT REQUESTS FOR RESCHEDULING ANNUAL LEAVE FOR MORE THAN ONE DAY MUST
 BE MADE IN WRITING AND WERE APPROVED IN WRITING.  IN THE SUPPLY
 DIVISION, MOST ANNUAL LEAVE WAS RESCHEDULED BY ORAL REQUEST BY STRIKING
 OUT THE LEAVE PREVIOUSLY SHOWN ON THE SCHEDULE AND ENTERING THE
 REQUESTED DATES FOR THE EMPLOYEE ON THE SCHEDULE.  ALTHOUGH THIS PLACED
 THE EMPLOYEE'S RESCHEDULED LEAVE ON THE LEAVE SCHEDULE, SUCH PRACTICE
 DID NOT PROVIDE THE REQUIRED DOCUMENTATION REQUIRED TO PERMIT
 RESTORATION OF FORFEITED ANNUAL LEAVE, AND OTHERWISE MERITORIOUS
 REQUESTS HAD TO BE DENIED OVER THE YEARS BECAUSE THE EMPLOYEE COULD NOT
 SHOW THAT THE LEAVE HAD BEEN SCHEDULED IN ADVANCE.  ACCORDINGLY, ON
 MARCH 10, 1977, THE CIVILIAN PERSONNEL OFFICER AGAIN REMINDED ALL
 SUPERVISORS THAT "THE SCHEDULING AND, AS NECESSARY, RESCHEDULING OF THE
 ANNUAL LEAVE MUST BE IN WRITING." (COMP. EXH. 20).
 
    MR. MORGAN, CHIEF OF THE SUPPLY DIVISION, FOLLOWING RECEIPT OF THE
 CIVILIAN PERSONNEL OFFICER'S REMINDER OF MARCH 10, 1977, DECIDED THAT
 LEAVE RESCHEDULING REQUESTS SHOULD BE IN WRITING AND A FORM, OR AT LEAST
 A FORMAT, DEVELOPED BY HIS CHIEF OF MATERIALS MANAGEMENT, MS. ROWE, WAS
 ADOPTED BY THE SUPPLY DIVISION.  THERE IS NO DISPUTE THAT THE PRACTICE
 IN THE SUPPLY DIVISION HAS BEEN TO RESCHEDULE LEAVE ORALLY;  THAT THE
 IMMEDIATE SUPERVISOR ACTED ON THE REQUEST;  AND THAT THERE WAS NO PRIOR
 DISCUSSION WITH COMPLAINANT BEFORE THE SUPPLY DIVISION IMPLEMENTED ITS
 "FORM." DID RESPONDENT THEREBY VIOLATE SECTION 19(A) (6) AND,
 DERIVATIVELY, SECTION 19(A)(1)?
 
    SECTION 19(A)(6) PROVIDES THAT MANAGEMENT SHALL NOT
 
    "(6) REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A LABOR
 ORGANIZATION AS REQUIRED BY THIS
 
    ORDER."
 
    OF COURSE, SECTION 11(A) OF THE ORDER PROVIDES, IN PART, THAT:
 
    "(A) AN AGENCY AND A LABOR ORGANIZATION THAT HAS BEEN ACCORDED
 EXCLUSIVE RECOGNITION
 
    . . . SHALL MEET AT REASONABLE TIMES AND CONFER IN GOOD FAITH WITH
 RESPECT TO PERSONNEL
 
    POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS . .
 ."
 
    AND SECTION 10(E) OF THE ORDER PROVIDES, IN PART, AS FOLLOWS:
 
    "(E) WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE
 RECOGNITION, IT IS THE EXCLUSIVE
 
    REPRESENTATIVE OF EMPLOYEES IN THE UNIT AND IS ENTITLED TO ACT FOR
 AND TO NEGOTIATE AGREEMENTS
 
    COVERING ALL EMPLOYEES IN THE UNIT . . . "
 
    COMPLAINANT HAS NEGOTIATED AN AGREEMENT FOR ALL EMPLOYEES IN THE UNIT
 WHICH PROVIDES IN ARTICLE XVI, SECTION 16-1, THAT LEAVE WILL BE
 ADMINISTERED IN ACCORDANCE WITH FORT SAM HOUSTON REGULATION 690-14.  FSH
 690-14 PROVIDES THAT ALL TYPES OF LEAVE MUST BE REQUESTED BY THE
 EMPLOYEE, IN WRITING WHERE APPROPRIATE, AND APPROVED BY THE SUPERVISOR.
 THE EXCEPTIONS FROM THE "IN WRITING" REQUIREMENT, AS EXPLAINED IN
 690-14, DO NOT INCLUDE REQUESTS TO RESCHEDULE ANNUAL LEAVE EXCEPT TO THE
 EXTENT THAT EMERGENCY LEAVE, SICK LEAVE, OR POSSIBLY SOME OTHER
 SPECIFIED CIRCUMSTANCE, IS INVOLVED.  EXCEPT FOR EMERGENCY TYPE
 SITUATIONS, AS NOTED, RESPONDENT'S INSTRUCTIONS SINCE AT LEAST 1974 HAVE
 MADE IT CLEAR THAT REQUESTS TO RESCHEDULE ANNUAL LEAVE SHOULD BE IN
 WRITING AND MUST BE IN WRITING TO SUPPORT REQUESTS FOR THE RESTORATION
 OF ANNUAL LEAVE;  AND THE PRACTICE IN THE BARGAINING UNIT, EXCEPT IN THE
 SUPPLY DIVISION, HAD BEEN SINCE 1914 THAT REQUESTS TO RESCHEDULE ANNUAL
 LEAVE MUST BE MADE IN WRITING AND APPROVED IN WRITING, ALTHOUGH NO
 PARTICULAR FORM HAD BEEN REQUIRED.  ACCORDINGLY, AS THE COLLECTIVE
 BARGAINING AGREEMENT PROVIDED THAT LEAVE SHOULD BE ADMINISTERED IN
 ACCORDANCE WITH FSH REGULATION 690-14;  FSH 690-14 REQUIRED THAT ALL
 TYPES OF LEAVE MUST BE REQUESTED BY THE EMPLOYEE IN WRITING WHERE
 APPROPRIATE;  RESPONDENT'S INSTRUCTIONS SINCE AT LEAST 1914 HAD MADE IT
 CLEAR THAT REQUESTS TO RESCHEDULE ANNUAL LEAVE SHOULD BE IN WRITING;
 AND THE PRACTICE IN THE BARGAINING UNIT, EXCEPT IN THE SUPPLY DIVISION,
 HAD BEEN THAT REQUESTS TO RESCHEDULE ANNUAL LEAVE MUST BE SUBMITTED BY
 THE EMPLOYEE IN WRITING, THE DECISION OF THE SUPPLY DIVISION IN APRIL
 1977, TO REQUIRE THAT REQUESTS TO RESCHEDULE ANNUAL LEAVE BE SUBMITTED
 IN WRITING WAS A REAFFIRMATION OF RESPONDENT'S EXISTING POLICY AND
 RESPONDENT'S CONDUCT WAS NOT INCONSISTENT WITH ITS BARGAINING OBLIGATION
 UNDER THE ORDER.  ALABAMA NATIONAL GUARD, MONTGOMERY, ALABAMA AND LOCAL
 1445, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, A/SLMR NO. 895, 7 A/SLMR
 767 (1977).  ALTHOUGH IN FORM, IT MIGHT APPEAR THAT THE DECISION OF THE
 IMMEDIATE SUPERVISOR AFTER APRIL, 1977, WAS NOT CONTROLLING, THE RECORD
 IS CLEAR THAT THE DECISION OF THE IMMEDIATE SUPERVISOR AFTER APRIL,
 1977, DID CONTROL;  THAT THE ADDED LEVELS OF "APPROVAL" CONSTITUTED NO
 MORE THAN AN EXCESS OF BUREAUCRATIC BUSY WORK WHICH PROVIDED ONLY
 WINDOW
 DRESSING;  AND THAT THERE WAS NO CHANGE IN ANY EXISTING TERM OR
 CONDITION OF EMPLOYMENT.  DEPARTMENT OF TREASURY, INTERNAL REVENUE
 SERVICE, BROOKHAVEN SERVICE CENTER AND NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU CHAPTER 099, A/SLMR NO. 814, 7 A/SLMR 255 (1977).
 
    SECTION 11(A) OF THE ORDER IS NOT INTENDED TO EMBRACE EVERY ISSUE OF
 INTEREST TO AGENCIES AND EXCLUSIVE REPRESENTATIVES AND WHICH MAY
 INDIRECTLY AFFECT EMPLOYEES.  RATHER, SECTION 11(A) ENCOMPASSES THOSE
 MATTERS WHICH MATERIALLY AFFECT AND HAVE A SUBSTANTIAL IMPACT ON
 PERSONNEL POLICIES, PRACTICES, AND GENERAL WORKING CONDITIONS.
 DEPARTMENT OF DEFENSE, AIR NATIONAL GUARD, TEXAS AIR NATIONAL GUARD,
 CAMP MABRY, AUSTIN, TEXAS AND TEXAS AIR GUARD AFGE COUNCIL OF LOCALS,
 A/SLMR NO. 738, 6 A/SLMR 591 (1976).  HERE, OF COURSE, FSH REGULATION
 690-14 REQUIRED THAT LEAVE, INCLUDING REQUESTS TO RESCHEDULE ANNUAL
 LEAVE, BE SUBMITTED BY THE EMPLOYEE IN WRITING.  ALTHOUGH THE PRACTICE
 IN THE SUPPLY DIVISION HAD BEEN TO RESCHEDULE ANNUAL LEAVE ON ORAL
 REQUEST, ENFORCEMENT OF THE REQUIREMENT, WHICH WAS ESTABLISHED POLICY IS
 THE BARGAINING UNIT, IN THE SUPPLY DIVISION NEITHER CHANGED ANY
 ESTABLISHED WORKING CONDITION NOR DID IT HAVE ANY IMPACT ON ANY
 ESTABLISHED WORKING CONDITION.  NOR DID THE "FORM" ADOPTED BY THE SUPPLY
 DIVISION MATERIALLY AFFECT, OR HAVE A SUBSTANTIAL IMPACT ON PERSONNEL
 POLICIES, PRACTICES, OR MATTERS AFFECTING WORKING CONDITIONS.  INDEED,
 THE "FORM" DID NO MORE THAN REQUIRE THAT THE REQUEST PREVIOUSLY MADE
 ORALLY BE STATED IN WRITING.  ACCORDINGLY, RESPONDENT DID NOT VIOLATE
 SECTION 19(A)(1) AND (6) BY REQUIRING THE USE OF SUCH "FORM." SOCIAL
 SECURITY ADMINISTRATION, BUREAU OF HEARINGS AND APPEALS AND AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3615, A/SLMR NO.  979
 (1978);  SOCIAL SECURITY ADMINISTRATION, BUREAU OF HEARINGS AND APPEALS,
 ARLINGTON, VIRGINIA, CASE NO. 22-08461(CA), DEPARTMENT OF LABOR LETTER
 1085 (1978).
 
    SINCE COMPLAINANT HAS FAILED TO PROVE A VIOLATION OF SECTION 19(A)
 (6) OR (1) OF EXECUTIVE ORDER 11491, AS AMENDED, THE COMPLAINT IS HEREBY
 DISMISSED.
 
                            WILLIAM B. DEVANEY
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:
 
    WASHINGTON, D.C.
 
    /1A/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM
 ACT OF 1978 (92 STAT. 1224), THE INSTANT CASE IS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /1/ SECTION 3A. CONTINUES "EXCEPTIONS ARE EXPLAINED IN PERTINENT
 SECTIONS OF THIS REGULATION." NEITHER PARTY HAS REFERRED TO, OR RELIED
 UPON, THIS SENTENCE.  IT IS NOTED, THAT AN EXCEPTION IS MADE IN SECTION
 7, FOR EMERGENCY LEAVE AND PROVIDES THAT "THIS NOTIFICATION MAY BE
 ACCOMPLISHED BY TELEPHONE . . ." IT IS FURTHER NOTED THAT SECTION 9 C.3
 (3), SICK LEAVE, PROVIDES:  "WHEN AN EMPLOYEE IS UNABLE TO REPORT FOR
 WORK BECAUSE OF ILLNESS, HE MUST INSURE THAT HIS SUPERVISOR IS NOTIFIED
 . . ." THESE ARE SIMPLY TWO EXAMPLES OF EXCEPTIONS FROM THE GENERAL
 POLICY THAT LEAVE BE REQUESTED IN WRITING.  NO ATTEMPT HAS BEEN MADE TO
 CATALOGUE ALL "EXCEPTIONS" SET FORTH IN THE REGULATION.
 
    /2/ MR. BUCKLEY WAS ASKED ABOUT DISCUSSIONS HE HAD WITH COMPLAINANT
 WHEN THE CHARGE HEREIN WAS FILED AND STATED, IN PART, AS FOLLOWS:
 
    "A WELL, AS I REMEMBER, OUR DISCUSSION ON THE SUBJECT-- WE INDICATED,
 I THINK, INITIALLY THAT WE DID NOT FEEL THIS WAS A CHANGE IN PAST
 PRACTICE, BUT IF IT WOULD RESOLVE, YOU KNOW, THE PROBLEM, WE WERE
 WILLING TO WITHDRAW THE FORM, ALTHOUGH WE DID NOT ACKNOWLEDGE THAT IT
 WAS A VIOLATION OR A CHANGE IN PERSONNEL POLICY, IT WAS MERELY A
 DIFFERENT WAY OF DOING A POLICY THAT EXISTED IN THE PAST." (TR. 111).
 
    /3/ FORM DA 2496, ENTITLED "DISPOSITION FORM", IS A BLANK FORM USED
 FOR A GREAT VARIETY OF CO