Bureau of Alcohol, Tobacco and Firearms, National Office and Central Region (Respondent) and National Treasury Employees Union (Complainant) 

 



[ v02 p477 ]
02:0477(67)CA
The decision of the Authority follows:


 2 FLRA No. 67
 
 BUREAU OF ALCOHOL, TOBACCO AND
 FIREARMS, NATIONAL OFFICE AND
 CENTRAL REGION
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Complainant
 
                                            Assistant Secretary
                                            Case No. 53-10665(CA)
 
                            DECISION AND ORDER
 
    ON MAY 17, 1979, ADMINISTRATIVE LAW JUDGE GARVIN LEE OLIVER ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
 FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICE
 ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT BE
 DISMISSED IN ITS ENTIRETY.  THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS
 TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER AND THE
 RESPONDENT FILED A RESPONSE TO THE COMPLAINANT'S EXCEPTIONS.
 
    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 RULES AND REGULATIONS
 (44 F.R. 44741, JULY 30, 1979).  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 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 THE SUBJECT
 CASE, INCLUDING THE COMPLAINANT'S EXCEPTIONS AND THE RESPONDENT'S
 RESPONSE TO THE EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE
 ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION, AS
 MODIFIED BELOW.  /1/
 
    IN REACHING HIS CONCLUSION, THE ADMINISTRATIVE LAW JUDGE FOUND THAT
 SECTION 19(D) OF THE ORDER PRECLUDED CONSIDERATION OF THE ALLEGATIONS
 THAT THE RESPONDENT UNILATERALLY TERMINATED CERTAIN PAST PRACTICES.
 THESE PAST PRACTICES INCLUDED THE USE OF OFFICIAL OR ADMINISTRATIVE TIME
 AND THE USE OF GOVERNMENT TELEPHONES BY A CHIEF STEWARD AND/OR UNION
 OFFICER FOR THE PURPOSE OF CONFERRING WITH UNION STEWARDS OR THE UNION'S
 NATIONAL OFFICE CONCERNING REPRESENTATIONAL MATTERS.  IN THIS REGARD,
 THE ADMINISTRATIVE LAW JUDGE FOUND THAT, PRIOR TO THE FILING OF THE
 INSTANT UNFAIR LABOR PRACTICE CHARGE HEREIN, THE COMPLAINANT FILED A
 GRIEVANCE ALLEGING THAT RESPONDENT VIOLATED THE CONTRACT BY DENYING THE
 LOCAL UNION PRESIDENT/CHIEF STEWARD OFFICIAL TIME FOR THE PURPOSE OF
 CONFERRING BY GOVERNMENT TELEPHONE WITH A UNION STEWARD CONCERNING A
 GRIEVANCE THEN IN PROCESS.  DESPITE THE EVIDENCE ESTABLISHING THAT
 COMPLAINANT'S GRIEVANCE CONCERNED ONLY THE ISSUE OF THE DENIAL OF
 OFFICIAL TIME AND EXCLUDED THE ISSUE OF THE DENIAL OF THE USE OF THE
 GOVERNMENT TELEPHONE, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT
 SECTION 19(D) /2/ PRECLUDED CONSIDERATION NOT ONLY OF THE ISSUE OF THE
 USE OF OFFICIAL TIME, BUT ALSO THE ISSUE OF THE USE OF THE TELEPHONE
 SINCE BOTH ISSUES AROSE OUT OF THE SAME INCIDENT AND COULD HAVE BEEN
 RAISED DURING THE GRIEVANCE PROCEDURE.  ALTHOUGH THE AUTHORITY AGREES
 WITH THE ADMINISTRATIVE LAW JUDGE THAT THE ISSUE OF THE USE OF OFFICIAL
 TIME IS BARRED FROM CONSIDERATION IN THIS PROCEEDING BY THE PROVISIONS
 OF SECTION 19(D), CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE
 AUTHORITY DOES NOT AGREE THAT THE ISSUE OF THE USE OF GOVERNMENT
 TELEPHONES FOR REPRESENTATIONAL PURPOSES IS SIMILARLY BARRED FROM
 CONSIDERATION AS AN UNFAIR LABOR PRACTICE.  THUS, IN THE AUTHORITY'S
 VIEW, SECTION 19(D) RESERVES TO THE AGGRIEVED PARTY THE OPTION OF
 RAISING SUCH AN ISSUE IN EITHER THE CONTRACTUALLY ESTABLISHED GRIEVANCE
 PROCEDURE OR THE UNFAIR LABOR PRACTICE PROCEDURE.  SINCE THE EVIDENCE,
 AS FOUND BY THE ADMINISTRATIVE LAW JUDGE, CLEARLY ESTABLISHED THAT
 COMPLAINANT DID NOT RAISE THE ISSUE OF THE DENIAL OF THE USE OF
 GOVERNMENT TELEPHONES FOR REPRESENTATIONAL PURPOSES IN THE GRIEVANCE
 PROCEDURE, SECTION 19(D) DOES NOT PRECLUDE RAISING THIS ISSUE AS AN
 UNFAIR LABOR PRACTICE UNDER OF THE ORDER.
 
    HOWEVER, IN AGREEMENT WITH THE FURTHER FINDINGS OF THE ADMINISTRATIVE
 LAW JUDGE, THE AUTHORITY CONCLUDES THAT THE EVIDENCE PRESENTED HEREIN IS
 INSUFFICIENT TO ESTABLISH THAT RESPONDENT VIOLATED THE ORDER WHEN IT
 TERMINATED THE ADMITTED PAST PRACTICE IN ITS CENTRAL REGION OF ALLOWING
 COMPLAINANT THE USE OF CERTAIN FACILITIES FOR REPRESENTATIONAL PURPOSES,
 SUCH AS TELEPHONES, MAIL AND COPYING FACILITIES.  THUS, THE EVIDENCE
 ESTABLISHES THAT SUCH ISSUES WERE RAISED AND DISCUSSED BY THE PARTIES
 DURING NEGOTIATIONS FOR A NEW AGREEMENT, AND IN THE FACE OF RESPONDENT'S
 REFUSAL TO INCORPORATE THE COMPLAINANT'S DEMANDS ON THESE ISSUES INTO
 THE NEW AGREEMENT, AS WELL AS RESPONDENT'S DETERMINATION TO TERMINATE
 THE ESTABLISHED PAST PRACTICES IN ITS CENTRAL REGION, COMPLAINANT, AT
 VARIOUS STAGES OF THE NEGOTIATIONS PROCESS, WITHDREW ITS DEMANDS ON
 THESE ISSUES AND, IN EFFECT, ACCEDED TO THE RESPONDENT'S POSITION WITH
 REGARD TO THESE ISSUES.  IN THESE CIRCUMSTANCES, THE AUTHORITY FINDS
 THAT RESPONDENT'S ACTION IN SUBSEQUENTLY TERMINATING THE PAST PRACTICES
 AFTER SUCCESSFUL NEGOTIATIONS FOR A NEW COLLECTIVE BARGAINING AGREEMENT
 HAD BEEN COMPLETED WAS NOT UNILATERAL, BUT, RATHER, AS A RESULT OF GOOD
 FAITH BARGAINING BY THE PARTIES.  ACCORDINGLY, THE AUTHORITY SHALL
 DISMISS THE SUBJECT COMPLAINT IN ITS ENTIRETY.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 53-10665(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JANUARY 25, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    MICHAEL SITCOV, ESQUIRE
 
    THERESE FALLER, ESQUIRE
 
    BUREAU OF ALCOHOL, TOBACCO
 
    AND FIREARMS
 
    1200 PENNSYLVANIA AVENUE, N.W.
 
    WASHINGTON, D.C. 20226
 
                            FOR THE RESPONDENTS
 
    GERI PALAST, ASSISTANT COUNSEL
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    1730 K STREET, N.W., SUITE 1101
 
    WASHINGTON, D.C. 20006
 
                            FOR THE COMPLAINANT
 
    BEFORE:  GARVIN LEE OLIVER
 
    ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED, AS A
 RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON JULY 21, 1978 BY
 THE NATIONAL TREASURY EMPLOYEES UNION (HEREINAFTER CALLED THE
 COMPLAINANT OR UNION), AGAINST THE BUREAU OF ALCOHOL, TOBACCO AND
 FIREARMS, NATIONAL OFFICE AND CENTRAL REGION (HEREINAFTER CALLED THE
 RESPONDENTS).
 
    THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT THE RESPONDENTS VIOLATED
 SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE ORDER BY TERMINATING PAST
 PRACTICES AFFECTING WORKING CONDITIONS WITHOUT NEGOTIATING WITH THE
 UNION.  THE ALLEGED PAST PRACTICES WERE THE USE BY THE UNION IN THE
 CENTRAL REGION OF GOVERNMENT PHONES TO CONFER WITH UNION STEWARDS AND
 THE NTEU NATIONAL OFFICE ABOUT GRIEVANCES, OTHER FORMAL ACTIONS, AND THE
 NTEU NATIONAL OFFICE ABOUT GRIEVANCES, OTHER FORMAL ACTIONS, AND THE
 APPLICATION AND INTERPRETATION OF THE CONTRACT;  THE USE OF OFFICIAL OR
 ADMINISTRATIVE TIME ON AN AS NEEDED BASIS TO HANDLE SUCH MATTERS;  AND
 THE USE OF COPYING AND POSTAGE FACILITIES FOR REPRESENTATIONAL PURPOSES.
 
    A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED IN
 WASHINGTON, D.C.  BOTH PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED
 FULL OPPORTUNITY TO BE HEARD, TO ADDUCE RELEVANT EVIDENCE, AND TO
 EXAMINE AND CROSS-EXAMINE WITNESSES.  POST-HEARING BRIEFS HAVE BEEN
 RECEIVED FROM BOTH PARTIES AND DULY CONSIDERED EXCEPT FOR THE
 ATTACHMENTS TO COMPLAINANT'S BRIEF.  THESE ATTACHMENTS WERE NOT
 CONSIDERED INASMUCH AS THEY RAISE NEW MATTERS AND WERE NOT OFFERED AT
 THE HEARING.
 
    BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
 ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
 FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    THE COMPLAINANT IS THE EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE
 OF A UNIT CONSISTING OF ALL NON-PROFESSIONAL GENERAL SCHEDULE AND WAGE
 GRADE EMPLOYEES EMPLOYED BY THE REGIONAL OFFICES OF THE RESPONDENT (REG.
 ADM. EXH. 1D).  AN INITIAL COLLECTIVE BARGAINING AGREEMENT WAS SIGNED
 MARCH 5, 1974.  ARTICLE 6, SECTION 3, PROVIDED AS FOLLOWS:
 
                                 ARTICLE 6
 
                           UNION REPRESENTATIVE
 
    SECTION 3
 
    A. THE REPRESENTATIVES DESIGNATED BY THE UNION IN SECTION 2 OF THIS
 ARTICLE WILL BE EXCUSED
 
    FROM DUTY WITHOUT CHARGE TO PAY OR LEAVE TO ADMINISTER THE TERMS AND
 CONDITIONS OF THIS
 
    AGREEMENT AS FOLLOWS:
 
    1.  ONE (1) REPRESENTATIVE IN EACH REGION DESIGNATED BY THE UNION AS
 CHIEF REPRESENTATIVE
 
    WILL BE CREDITED WITH THREE (3) HOURS PER PAY PERIOD.
 
    2.  ALL OTHER REPRESENTATIVES DESIGNATED BY THE UNION WILL BE
 CREDITED WITH TWO (2) HOURS
 
    PER PAY PERIOD.
 
    3.  REPRESENTATIVES WILL BE CREDITED ON THE OPERATIVE DATE OF THIS
 AGREEMENT AND EACH
 
    SUBSEQUENT ANNIVERSARY OF THAT DATE WITH THE TOTAL AMOUNT OF TIME TO
 WHICH THEY ARE ENTITLED
 
    UNDER THIS SUBSECTION FOR THE SUCCEEDING YEAR.  THE TIME MAY BE USED
 AT ANY TIME DURING THE
 
    YEAR.
 
    4.  AN AFFECTED EMPLOYEE WILL BE ON OFFICIAL TIME TO DISCUSS WITH A
 UNION REPRESENTATIVE,
 
    USING TIME UNDER THIS SUBSECTION, ALL MATTERS FOR WHICH REMEDIAL
 RELIEF MAY BE SOUGHT BY THE
 
    EMPLOYEE UNDER THE TERMS AND CONDITIONS OF THIS AGREEMENT.
 
    B.  IN ADDITION, A UNION REPRESENTATIVE AND AN AFFECTED EMPLOYEE WILL
 BE EXCUSED FROM DUTY
 
    WITHOUT CHARGE TO PAY OR LEAVE FOR A REASONABLE PERIOD TO PRESENT
 GRIEVANCES AND APPEALS, TO
 
    PREPARE REPLIES TO NOTICES OF PROPOSED ADVERSE ACTION OR REPLIES TO
 NOTICES OF PROPOSED
 
    ADVERSE ACTION OR SUSPENSION OF THIRTY (30) DAYS OR LESS, AND TO
 INTERVIEW WITNESSES AND
 
    REVIEW DOCUMENTS WHICH ARE OTHERWISE NOT AVAILABLE DURING NON-DUTY
 HOURS.
 
    C.  1.  A REPRESENTATIVE USING TIME UNDER THIS SECTION WILL CHECK
 WITH HIS IMMEDIATE
 
    SUPERVISOR, PRIOR TO LEAVING HIS WORK AREA, AND INFORM HIM OF THE
 APPROXIMATE TIME HE WILL BE
 
    AWAY.
 
    2.  A REPRESENTATIVE WHO ENTERS A WORK AREA AND USES TIME UNDER THIS
 SECTION WILL CHECK
 
    WITH THE SUPERVISOR IN THAT WORK AREA.
 
    3.  THAT SUPERVISOR WILL ALLOW THE REPRESENTATIVE TO LEAVE HIS WORK
 AREA UNLESS THE
 
    REPRESNETATIVE'S WORK REQUIREMENTS OR WORK SCHEDULE PROHIBITS HIS
 RELEASE. (JOINT EXH. 2)
 
    IN ADDITION, ARTICLE 14 (FACILITIES AND SERVICES) PROVIDED THAT THE
 RESPONDENT WOULD PROVIDE THE UNION SUCH SPECIFIC ITEMS AS MEETING SPACE
 (SECTIONS 1 AND 2), BULLETIN BOARDS (SECTION 4), AND A LISTING OF THE
 CHAPTER PRESIDENT IN THE AGENCY TELEPHONE DIRECTORY (SECTION 7).
 
    THE PARTIES STIPULATED THAT DURING THE LIFE OF THE FIRST AGREEMENT
 MARTIN J. CONNELL, PRESIDENT AND CHIEF STEWARD, NTEU CHAPTER 88:
 
    1.  USED U.S. GOVERNMENT TELEPHONES TO CONFER WITH DESIGNATED UNION
 STEWARDS IN THE ATF CENTRAL REGION ABOUT POTENTIAL AND ONGOING
 GRIEVANCES AND OTHER FORMAL ACTIONS AND ABOUT THE APPLICATION AND
 INTERPRETATION OF THE CONTRACT;
 
    2.  USED THE U.S. GOVERNMENT TELEPHONES TO MAKE CALLS TO THE NATIONAL
 OFFICE (AFTER CHARGING THE CALLS TO HIS HOME NUMBER) AND TO RECEIVE
 CALLS FROM THE NATIONAL OFFICE OF NTEU REGARDING THE MATTERS ENUMERATED
 IN (1) ABOVE;
 
    3.  USED "BANK TIME" TO HANDLE THE MATTERS REFERRED TO IN (1) ABOVE
 (E.G., IF 5 MINUTES WERE REQUIRED FOR A PHONE CALL, THEN 5 MINUTES OF
 BANK TIME WOULD BE LOGGED AND CHARGED AGAINST THE AMOUNT OF TIME
 ALLOTTED IN THE CONTRACT;  AND
 
    4.  USED COPYING AND POSTAGE FACILITIES FOR REPRESENTATIONAL
 PURPOSES;  AND
 
    5.  MANAGEMENT IN THE CENTRAL REGION WAS AWARE OF ALL OF THE ABOVE
 PRACTICES BY MARTIN CONNELL.  (JOINT EXH. 3).
 
    THE PARTIES BEGAN NEGOTIATIONS ON A NEW AGREEMENT IN APRIL 1976.
 (TR. 71).  AS RELEVANT HERE, THE UNION PROPOSED THAT "WHATEVER TIME IS
 SPENT IN THE CONDUCT OF UNION-EMPLOYER BUSINESS IS SPENT AS MUCH IN THE
 INTEREST OF THE EMPLOYER AS IN THAT OF THE UNION";  THAT, "A STEWARD,
 CHIEF STEWARD OR CHAPTER PRESIDENT MAY UTILIZE OFFICIAL TIME,
 HEREINAFTER REFERRED TO AS INDIVIDUAL BANK TIME, TO CONFER WITH AN
 AFFECTED EMPLOYEE WITH RESPECT TO ANY MATTERS FOR WHICH REMEDIAL RELIEF
 MAY BE SOUGHT PURSUANT TO RESPECT TO ANY MATTERS FOR WHICH REMEDIAL
 RELIEF MAY BE SOUGHT PURSUANT TO THE TERMS, AND CONDITIONS OF THIS
 AGREEMENT;" AND THAT "EMPLOYEES SERVING AS UNION STEWARDS SHALL BE
 DEEMED AS PERFORMING 'OTHER DUTIES AS ASSIGNED'" AS PHRASED IN THEIR
 POSITION DESCRIPTIONS.  (REG. ADM. EXH. 2A, P. 13 & 44, ARTICLE 6,
 SECTIONS 3A & 3B AND ARTICLE 13, SECTION 3;  TR. 27, 45-49).  RESPONDENT
 REJECTED THESE PROPOSALS.  RESPONDENT INSISTED THAT EMPLOYEES PERFORMING
 UNION REPRESENTATIONAL DUTIES WERE NO LONGER SERVING IN A GOVERNMENTAL
 CAPACITY AND SHOULD BE O4 ADMINISTRATIVE LEAVE.  (TR. 27, 45-48).  THE
 PARTIES DISCUSSED WHAT THEY MEANT BY "OFFICIAL TIME" AND "ADMINISTRATIVE
 LEAVE." THE UNION EXPLAINED THAT "OFFICIAL TIME" MEANT THAT UNION
 REPRESENTATIVES WERE PERFORMING GOVERNMENTAL FUNCTIONS, JUST AS MUCH AS
 IF THEY WERE PERFORMING THE JOBS FOR WHICH THEY WERE HIRED.  RESPONDENT
 EXPLAINED THAT "ADMINISTRATIVE LEAVE" MEANT THAT THE UNION
 REPRESENTATIVES WOULD BE EXCUSED FROM DUTY WITHOUT CHARGE TO PAY OR
 LEAVE AND HAD NO RIGHTS TO EITHER BENEFITS OR SERVICES PROVIDED BY THE
 GOVERNMENT FOR EMPLOYEES.  (TR. 50).
 
    IN DISCUSSING THE NUMBER OF HOURS TO BE PROVIDED FOR THE CHIEF
 STEWARD AND CHAPTER PRESIDENT, THE UNION PROPOSED AN INCREASE IN THE
 NUMBER OF HOURS PER PAY PERIOD FOR CHIEF STEWARDS A4D CHAPTER PRESIDENTS
 ON THE BASIS THAT THEY WOULD CONFER WITH STEWARDS ON GRIEVANCES,
 ESPECIALLY IN COMPLEX CASES.  (TR. 52-53, 63-64).  THIS WAS ALSO
 DISCUSSED IN TERMS OF PREPARING OR PROCESSING GRIEVANCES.  (TR. 29).
 RESPONDENT REJECTED THE PROPOSAL FOR INCREASED TIME CONTENDING THAT THIS
 WAS TRAINING TIME WHICH WAS ALREADY PROVIDED UNDER THE CONTRACT AND ALSO
 WAS IN THE NATURE OF INTERNAL UNION BUSINESS.  (TR. 52-53, 63-64).  THIS
 WAS ALSO DISCUSSED IN TERMS OF PREPARING OR PROCESSING GRIEVANCES.  (TR.
 29).  RESPONDENT REJECTED THE PROPOSAL FOR INCREASED TIME CONTENDING
 THAT THIS WAS TRAINING TIME WHICH WAS ALREADY PROVIDED UNDER THE
 CONTRACT AND ALSO WAS IN THE NATURE OF INTERNAL UNION BUSINESS.  (TR.
 52-53, 63-64, 93).  THROUGHOUT THE NEGOTIATIONS DIFFERENT UNION
 OFFICIALS -- STEWARD, CHIEF STEWARD, AND CHAPTER PRESIDENT -- WERE
 ALWAYS CONSIDERED SEPARATELY IN TERMS OF HOW MUCH TIME AND WHAT
 FUNCTIONS THESE PERSONS WOULD HAVE.  (TR. 50-53).  THIS REPRESENTED A
 CHANGE IN SOME RESPECTS FROM THE FIRST CONTRACT WHERE UNION
 REPRESENTATIVES WERE TO BE EXCUSED FROM DUTY "TO ADMINISTER THE TERMS
 AND CONDITIONS" OF THE AGREEMENT.  (TR. 54-55;  JOINT EXH. 2, ARTICLE 6,
 SECTION 3A SUPRA.)
 
    THE PARTIES AGREED TO CONTINUE A PROVISION IN THE PREVIOUS AGREEMENT
 WHICH PROVIDED FOR THE LISTING OF THE NAME, OFFICE TELEPHONE NUMBER, AND
 HOME TELEPHONE NUMBER OF EACH CHAPTER PRESIDENT IN THE AGENCY'S
 TELEPHONE DIRECTORY.  (REG. ADM. EXH. 1D, P. 24;  JOINT EXH. 2, P. 21;
 TR. 22, 60-63;  76-77).
 
    A DISCUSSION OF THE USE OF GOVERNMENT TELEPHONES CAME UP DURING
 NEGOTIATIONS CONCERNING A UNION PROPOSAL THAT EACH UNION STEWARD BE
 PROVIDED A TELEPHONE.  (TR. 19-20, 62).  RESPONDENT TOOK THE POSITION
 THAT PHONES FOR EACH STEWARD WOULD BE EXPENSIVE, UNNECESSARY, AND
 ILLEGAL.  (TR. 21).  THE UNION THEN ADVISED RESPONDENT THAT THERE HAD
 BEEN A PAST PRACTICE OF MARTIN CONNELL USING GOVERNMENT TELEPHONES IN
 THE CENTRAL REGION.  (TR. 21, 57).  THIS WAS THE FIRST TIME MANAGEMENT
 OUTSIDE OF THE CENTRAL REGION KNEW OF THE PRACTICE.  (TR. 56).
 RESPONDENT STATED THAT THEY WERE NOT GOING TO ALLOW THIS PRACTICE TO
 CONTINUE, AND IT WOULD HAVE TO BE STOPPED.  (TR.  35-36, 41-42, 57,
 69-70, 72-73, 80).
 
    THE UTILIZATION OF GOVERNMENT TELEPHONES WAS ALSO DISCUSSED IN TERMS
 OF WHAT KIND OF LEAVE UNION REPRESENTATIVES WOULD USE FOR THEIR
 REPRESENTATIONAL FUNCTIONS.  RESPONDENT'S POSITION WAS THAT IF UNION
 REPRESENTATIVES WERE ON ADMINISTRATIVE LEAVE THEY WOULD NOT BE ABLE TO
 USE GOVERNMENT TELEPHONES.  (TR. 57-62).
 
    THE UNION DROPPED ITS PROPOSAL FOR A PHONE FOR EACH STEWARD AT THE
 IMPASSES PANEL LEVEL, AND THE MATTER OF TELEPHONES WAS DISCUSSED
 THEREAFTER ONLY IN THE CONTEXT OF THE NEGOTIATIONS CONCERNING OFFICIAL
 TIME OR ADMINISTRATIVE LEAVE.  (TR. 71).  THE UNION, IN PRESENTING ITS
 POSITION TO THE IMPASSES PANEL ON ITS PROPOSAL CONCERNING THE USE OF THE
 INTERNAL MAIL SYSTEM NOTED THAT THE USE OF THE INTERNAL MAIL SYSTEM WAS
 NECESSARY, IN PART, BECAUSE OF "THE AGENCY'S ANNOUNCED POSITION THAT
 GOVERNMENT PHONES MAY NOT BE USED BY STEWARDS AND AFFECTED EMPLOYEES."
 (RESP. EXH. 1).
 
    POSTAGE FACILITIES
 
    DURING NEGOTIATIONS THE UNION PROPOSED THAT RESPONDENT AGREE TO
 DELIVER MAIL VIA THE INTRA-AGENCY MAIL SYSTEM.  (REG. ADM. EXH. 2A, ART.
 14, SEC. 13;  TR. 23).  RESPONDENT TOOK THE POSITION THAT THIS WOULD BE
 INAPPROPRIATE, AS USE OF THE MAIL IS LIMITED TO OFFICIAL BUSINESS, AND
 THE AGENCY WAS NOT GOING TO SUBSIDIZE THE UNION'S ACTIVITIES.  (TR. 24,
 39, 59).  THE PAST PRACTICE OF MARTIN CONNELL'S USE OF POSTAGE
 FACILITIES WAS DISCUSSED.  (TR. 40-41, 74).  RESPONDENT INDICATED THAT
 THESE PRACTICES WOULD NOT GO ON ANY FURTHER AND WOULD HAVE TO BE HALTED.
  (TR. 41, 69-70).  THE UNION DROPPED ITS PROPOSAL TO USE THE MAIL DURING
 A MEDIATION SESSION AT THE IMPASSES PANEL (TR. 71-72).
 
    COPYING FACILITIES
 
    THERE WERE NO PROPOSALS MADE DURING THE NEGOTIATIONS CONCERNING THE
 USE OF COPYING FACILITIES.  (TR. 25).  IT WAS ONLY DISCUSSED IN TERMS OF
 THE TYPES OF FACILITIES THAT WOULD NOT BE MADE AVAILABLE TO EMPLOYEES IF
 THEY WERE SERVING AS STEWARDS IN AN ADMINISTRATIVE LEAVE CAPACITY.  (TR.
 60).  THE PAST PRACTICE OF MARTIN CONNELL'S USE OF POSTAGE FACILITIES
 WAS MADE KNOWN IN APRIL 1976 DURING THE NEGOTIATIONS, AND RESPONDENT
 TOOK THE POSITION ON ALL THESE PRACTICES THAT THEY WERE NOT GOING TO GO
 ON ANY FURTHER.  (TR. 40-41, 74).
 
    THE AGREEMENT
 
    THE PARTIES AGREED TO ADMINISTRATIVE LEAVE FOR UNION REPRESENTATIVES,
 THE TYPES OF FUNCTIONS EACH WOULD PERFORM AND THE AMOUNT OF TIME THEY
 WOULD BE ALLOTTED AT THE FINAL SESSION BEFORE THE IMPASSES PANEL.  (TR.
 81, 88).  RESPONDENT CONTENDS THAT AGREEMENT ON ADMINISTRATIVE LEAVE
 CARRIED WITH IT THE VIEW THAT HAD BEEN EXPRESSED FROM APRIL 1976 THROUGH
 APRIL 1977 - THAT ADMINISTRATIVE LEAVE MEANT UNION REPRESENTATIVES WERE
 EXCUSED FROM DUTY, WERE NOT PERFORMING OFFICIAL FUNCTIONS, AND COULD NOT
 USE ANY OFFICIAL GOVERNMENT SERVICES.  (TR. 81).
 
    THE AGREEMENT CONTAINED NO LANGUAGE ABOUT THE PAST PRACTICES
 INVOLVING THE USE OF GOVERNMENT TELEPHONES, COPYING, AND POSTAGE
 FACILITIES.  (TR. 41, 43, 72).  NO PROPOSALS WERE MADE FOR CONTINUING
 THE PRACTICES.  (TR. 104).  RESPONDENT FELT THAT THE PRACTICES WOULD BE
 STOPPED AS A RESULT OF WHAT HAD BEEN DECIDED DURING THE NEGOTIATIONS,
 AND THAT THE UNION WAS ON NOTICE THAT IT INTENDED TO PUT A STOP TO THE
 PRACTICES.  (TR. 69-73, 75).  THE UNION TAKES THE POSITION THAT THE PAST
 PRACTICES WERE LEFT INTACT.
 
    THE NEW AGREEMENT WAS SIGNED SEPTEMBER 19, 1977 AND BECAME EFFECTIVE
 IN NOVEMBER 1977.  ARTICLE 6, UNION STEWARDS, SECTION 3 PROVIDED AS
 FOLLOWS:
 
    SECTION 3
 
    A.  THE STEWARDS DESIGNATED BY THE UNION PURSUANT TO SECTION 2 OF
 THIS ARTICLE WILL BE
 
    GRANTED ADMINISTRATIVE LEAVE AS FOLLOWS:
 
    1.  STEWARD POSITIONS WILL HAVE TWO (2) HOURS PER PAY PERIOD FOR THE
 PURPOSE OF ALLOWING
 
    STEWARDS TO DISCUSS WITH EMPLOYEES POTENTIAL GRIEVANCES AND PREPARING
 GRIEVANCES.  THIS TIME
 
    WILL ALSO COVER ALL TRAVEL TIME AWAY FROM THEIR JOB WHERE THE PURPOSE
 OF THE TRAVEL IS TO
 
    INTERVIEW WITNESSES AND REVIEW DOCUMENTS OTHERWISE NOT AVAILABLE
 DURING NON-DUTY HOURS.
 
    2.  THE CHIEF STEWARD SHALL RECEIVE THREE (3) HOURS PER PAY PERIOD TO
 ENGAGE IN ACTIVITIES
 
    SET FORTH IN SUBSECTION 1 OF THIS SECTION, INCLUDING TRAVEL TO SECOND
 AND THIRD STEP GRIEVANCE
 
    MEETINGS. THE PARTIES AGREE THAT IF THE ADDITIONAL ONE (1) HOUR PER
 PAY PERIOD GIVEN TO CHIEF
 
    STEWARDS IS NOT SUFFICIENT FOR TRAVEL TO SECOND AND THIRD STEP
 GRIEVANCE MEETINGS, EITHER SIDE
 
    MAY REOPEN THIS SECTION FOR FURTHER NEGOTIATIONS.
 
    3.  THE CHAPTER PRESIDENT SHALL RECEIVE TWO (2) HOURS PER PAY PERIOD
 TO ATTEND THIRD STEP
 
    GRIEVANCE MEETINGS AND OTHER FORMAL DISCUSSIONS WITH THE EMPLOYER.
 
    B.  IN ADDITION A UNION STEWARD AND AFFECTED
 
    EMPLOYEE SHALL RECEIVE A REASONABLE AMOUNT OF TIME TO PRESENT
 GRIEVANCES, PREPARE AND PRESENT
 
    REPLIES TO NOTICES OF PROPOSED ADVERSE ACTIONS AND SUSPENSIONS OF
 THIRTY DAYS OR LESS, AND TO
 
    INTERVIEW WITNESSES WHO HAVE EXPRESSED AN UNWILLINGNESS OR INABILITY
 TO BE INTERVIEWED AFTER
 
    HOURS, AND TO REVIEW DOCUMENTS NOT AVAILABLE DURING NON-DUTY HOURS.
 
    C.  A UNION STEWARD WILL RECEIVE A REASONABLE AMOUNT OF TIME TO
 TRAVEL TO GRIEVANCE
 
    MEETINGS, TO ARBITRATION HEARINGS WHERE THE STEWARD IS THE
 REPRESENTATIVE OF AN EMPLOYEE
 
    WITHIN HIS/HER AREA OFFICE OR HIS/HER REGIONAL OFFICE.  IT IS AGREED
 THAT IF A STEWARD
 
    REPRESENTS AN EMPLOYEE OUTSIDE HIS/HER AREA OFFICE OR OUTSIDE HIS/HER
 REGIONAL OFFICE, THE
 
    AFORECITED TRAVEL SHALL BE CHARGED TO BANK TIME.
 
    D.  THE TOTAL TIME AVAILABLE TO EACH POSITION FOR THE SUCCEEDING YEAR
 UNDER SECTION 3A OF
 
    THIS ARTICLE WILL BE CREDITED TO THE POSITION ON THE EFFECTIVE DATE
 OF THIS AGREEMENT AND EACH
 
    YEAR THEREAFTER.  THE TIME MAY BE USED AT ANY TIME DURING THE YEAR
 BUT MAY NOT BE CARRIED OVER
 
    TO SUBSEQUENT YEARS.  EMPLOYEES APPOINTED TO FILL A VACATED POSITION
 HAVE AVAILABLE ONLY THE
 
    UNUSED TIME PREVIOUSLY CREDITED TO THAT POSITION.
 
    E.  1.  STEWARDS USING TIME UNDER THIS ARTICLE, OR LEAVING THEIR WORK
 SITE TO PERFORM ANY
 
    OTHER REPRESENTATIONAL FUNCTION, WILL CHECK WITH THEIR IMMEDIATE
 SUPERVISORS, PRIOR TO LEAVING
 
    THEIR WORK SITE, AND INFORM THEIR SUPERVISORS OF THE APPROXIMATE TIME
 THEY WISH TO BE AWAY.  A
 
    STEWARD ENTERING A WORK AREA TO PERFORM A REPRESENTATIONAL FUNCTION
 WILL CHECK WITH THE
 
    SUPERVISOR IN THAT WORK AREA.
 
    2.  SUPERVISORS WILL ALLOW THE STEWARD TO LEAVE HIS/HER WORK AREA
 UNLESS THE STEWARD'S WORK
 
    REQUIREMENTS OR WORK SCHEDULE PROHIBITS HIS/HER RELEASE.
 
    3.  STEWARDS ARE RESPONSIBLE FOR ASSURING THAT TIME USED UNDER
 SECTION 3A OF THIS ARTICLE
 
    IS RECORDED ON THEIR TIME CARDS.
 
    THE RESPONDENT HELD TRAINING SESSIONS WITH ITS FIELD MANAGERS TO
 ADVISE THEM OF THE TERMS OF THE NEW AGREEMENT.  THESE TRAINING SESSIONS
 LED TO MR. CONNELL'S SUPERVISOR ADVISING MR. CONNELL IN JANUARY 1978
 THAT HE WOULD NOT BE PERMITTED TO ENGAGED IN THE ACTIVITIES SET FORTH
 ABOVE AND PREVIOUSLY ENGAGED IN DURING THE LIFE OF THE FIRST AGREEMENT.
 (TR.  73-74;  JOINT EXH. 3).
 
    ON FEBRUARY 3, 1978, MR. CONNELL, CHIEF STEWARD, NTEU CHAPTER 88,
 FILED A GRIEVANCE WITH HIS SUPERVISOR, JAMES O. WALL, CONCERNING ACTIONS
 TAKEN BY MR. WALL DURING THE PERIOD JANUARY 30 THROUGH FEBRUARY 2, 1978.
  MR. CONNELL ALLEGED THAT HE WAS ENTITLED TO ADDITIONAL BANK TIME UNDER
 ARTICLE 6, SECTION 3A 1 AND 2 OF THE AGREEMENT, AND THAT HE HAD NOT BEEN
 ALLOWED TIME TO DISCUSS A GRIEVANCE IN PERSON OR BY TELEPHONE WITH
 ANOTHER STEWARD WHO WAS A GRIEVANT'S REPRESENTATIVE.  IN APPEALING THE
 STEP ONE DECISION, MR. CONNELL ACKNOWLEDGED THAT HE HAD ALSO BEEN DENIED
 THE USE OF A GOVERNMENT TELEPHONE TO CALL THE STEWARD "BUT I DID NOT
 MAKE THIS A PART OF THE ISSUE FORMING MY GRIEVANCE." (REG. ADM. EXH.
 2C-2-2C-7).  COMPLAINANT HAS INVOKED ARBITRATION ON THE GRIEVANCE
 PURSUANT TO ARTICLE 34 OF THE AGREEMENT.  (REG. ADM. EX. 2C-1).
 
    MR. CONNELL, ON BEHALF OF NTEU, CHAPTER 88, FILED THE CHARGE IN THIS
 MATTER ON FEBRUARY 7, 1978, AND ALSO ALLEGED THAT THE ACTIONS AROSE OUT
 OF ACTIONS BY MR. WALL DURING THE PERIOD OF JANUARY 30 THROUGH FEBRUARY
 3, 1978.  (REG. ADM. EXH. 1B).  THE CHARGE, CARRIED OVER TO THE
 COMPLAINT, ALLEGED THAT MR. WALL HAD MADE CHANGES WITHOUT NEGOTIATING
 WITH THE UNION BY DENYING MR. CONNELL THE USE OF GOVERNMENT TELEPHONES
 TO CONFER WITH UNION STEWARDS AND THE NTEU NATIONAL OFFICE ABOUT
 POTENTIAL AND ON-GOING GRIEVANCES, APPEAL ACTIONS, AND THE APPLICATION
 AND INTERPRETATION OF THE AGREEMENT;  THE USE OF OFFICIAL TIME INSTEAD
 OF ANNUAL LEAVE FOR THE PURPOSE OF HANDLING SUCH MATTERS;  AND THE USE
 OF COPYING MACHINES, OFFICE SUPPLIES, AND POSTAGE FACILITIES FOR
 REPRESENTATIONAL PURPOSES.  (REG. ADM. EXH. 1B).  AS NOTED, THE PARTIES
 HAVE STIPULATED TO THIS ACTION BY MR. WALL.  (JOINT EXH. 3).
 
               DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
 
    THERE IS NO INHERENT RIGHT UNDER THE ORDER FOR EMPLOYEES, IN THEIR
 CAPACITY AS UNION OFFICIALS OR REPRESENTATIVES, TO USE OFFICIAL TIME FOR
 EMPLOYEE REPRESENTATIONAL ACTIVITIES.  DEPARTMENT OF THE AIR FORCE, BASE
 PROCUREMENT OFFICE, VANDENBERG AIR FORCE BASE, CALIFORNIA, 4 FLRC 587,
 591, FLRC NO. 75A-25(1976).  IT IS FURTHER WELL ESTABLISHED THAT THE USE
 OF AGENCY FACILITIES AND EQUIPMENT BY A UNION IS A PRIVILEGE AND NOT A
 RIGHT.  U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, NEW
 ORLEANS DISTRICT, NEW ORLEANS, LOUISIANA, A/SLMR NO. 1034(1978).  A
 PRACTICE MAY, IF CONSISTENTLY FOLLOWED, RIPEN INTO A WORKING CONDITION
 WHICH MAY NOT BE UNILATERALLY CHANGED WITHOUT AFFORDING THE EXCLUSIVE
 BARGAINING REPRESENTATIVE THE OPPORTUNITY TO NEGOTIATE CONCERNING SUCH
 PROPOSED CHANGE IN WORKING CONDITIONS.  NATIONAL LABOR RELATIONS BOARD,
 3 A/SLMR 88, A/SLMR NO. 246(1973).  A COLLECTIVE BARGAINING AGREEMENT
 ALSO CREATES MUTUAL RIGHTS AND OBLIGATIONS WHICH EITHER PARTY MAY
 LAWFULLY INSIST BE OBSERVED.  DEPARTMENT OF THE AIR FORCE, 4392ND
 AEROSPACE SUPPORT GROUP, VANDENBERG AFB, CALIFORNIA, 7 A/SLMR 989,
 A/SLMR NO. 935(1977);  VETERANS ADMINISTRATION CENTER, BATH, NEW YORK,
 A/SLMR NO. 335(1973).
 
    COMPLAINANT CONTENDS THAT CHIEF STEWARD CONNELL'S USE OF TELEPHONES,
 POSTAL SERVICES, AND COPYING FACILITIES FOR REPRESENTATIONAL PURPOSES
 AND UTILIZATION OF ADMINISTRATIVE LEAVE FOR THE PURPOSES OF CONFERRING
 WITH STEWARDS AND UNION HEADQUARTERS BY TELEPHONE CONSTITUTED PAST
 PRACTICES AND IMPLIED TERMS OF THE CONTRACT IN THE CENTRAL REGION, AND
 NO WAIVER OF ITS RIGHT TO NEGOTIATE A CHANGE IN THESE PRACTICES CAN BE
 FOUND IN THE BARGAINING HISTORY, SURROUNDING CIRCUMSTANCES, OR FINAL
 LANGUAGE OF THE SECOND COLLECTIVE BARGAINING AGREEMENT.
 
    RESPONDENT'S POSITION IS THAT THE UNFAIR LABOR PRACTICE PROCEEDING IS
 BARRED BY SECTION 19(B) OF THE ORDER SINCE THE MATTERS WERE PREVIOUSLY
 RAISED IN A GRIEVANCE;  THAT THE ACTIONS RELATE SOLELY TO ARGUABLE
 INTERPRETATIONS OF THE NEW CONTRACT;  THAT THERE WAS NO PAST PRACTICE
 BINDING ON THE RESPONDENT;  AND THAT IT WAS MERELY IMPLEMENTING MORE
 RESTRICTIVE LANGUAGE OF THE NEW AGREEMENT.
 
    SECTION 19(D) OF THE EXECUTIVE ORDER PROVIDES, IN PERTINENT PART,
 "ISSUES WHICH CAN BE RAISED UNDER A GRIEVANCE PROCEDURE MAY, IN THE
 DISCRETION OF THE AGGRIEVED PARTY, BE RAISED UNDER THAT PROCEDURE OR THE
 COMPLAINT PROCEDURE, BUT NOT UNDER BOTH PROCEDURES." "ISSUES WHICH CAN
 BE RAISED" REFERS TO ISSUES IN THE SAME INCIDENT.  DEPARTMENT OF THE
 TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, A/SLMR NO.
 1045(1978);  DEPARTMENT OF DEFENSE, U.S. NAVY, NORFOLK NAVAL SHIPYARD, 7
 A/SLMR 829, A/SLMR NO. 908(1977).
 
    THE GRIEVANCE FILED BY MARTIN J. CONNELL, CHIEF STEWARD, NTEU CHAPTER
 88, CONCERNED ACTIONS TAKEN BY HIS SUPERVISOR DURING THE PERIOD JANUARY
 30 THROUGH FEBRUARY 2, 1978 WHICH AFFECTED CONNELL'S RIGHTS AS A DULY
 AUTHORIZED REPRESENTATIVE OF THE LABOR ORGANIZATION.  AS NOTED, MR.
 CONNELL ALLEGED IN THE GRIEVANCE THAT HE WAS ENTITLED TO ADDITIONAL
 ADMINISTRATIVE LEAVE "BANK TIME" UNDER THE AGREEMENT AND WAS ENTITLED TO
 USE SUCH TIME FOR THE PURPOSE OF DISCUSSING A GRIEVANCE IN PERSON OR BY
 PHONE WITH ANOTHER STEWARD WHO WAS A GRIEVANT'S REPRESENTATIVE.  MR.
 CONNELL ACKNOWLEDGED THAT HE HAD ALSO BEEN DENIED THE USE OF A
 GOVERNMENT TELEPHONE TO CALL THE STEWARD, "BUT I DID NOT MAKE THIS A
 PART OF THE ISSUE FORMING MY GRIEVANCE." SINCE THE ISSUE OF THE USE OF A
 GOVERNMENT TELEPHONE BY MR. CONNELL TO CONFER WITH A STEWARD AS WELL AS
 THE ISSUE OF THE UNILATERAL CHANGE IN POLICY CONCERNING HIS USE OF THE
 TELEPHONE AND BANK TIME FOR SUCH PURPOSE AROSE OUT OF THE SAME INCIDENT
 AND COULD HAVE BEEN RAISED DURING THE GRIEVANCE PROCEDURE, SECTION 19(D)
 OF THE ORDER BARS THESE IDENTICAL ISSUES FROM BEING DETERMINED IN THIS
 UNFAIR LABOR PRACTICE PROCEEDING.  CF. U.S. GEOLOGICAL SURVEY, GULF OF
 MEXICO, OCS OPERATIONS AND LOCAL 3457, AFGE, CASE NO. 64-4091(CA),
 DECEMBER 22, 1978;  DEPARTMENT OF DEFENSE, DEPENDENT SCHOOLS EUROPE,
 CASE NO. 22-08769(SEPT. 20, 1978);  DEPARTMENT OF THE NAVY, PEARL HARBOR
 NAVAL SHIPYARD, ASSISTANT SECRETARY CASE NO. 73-587(CA), REQUEST FOR
 REVIEW DENIED, 3 FLRC 596, FLRC NO. 75-A-57(SEPT. 18, 1975).  DEPARTMENT
 OF THE NAVY, MARE ISLAND NAVAL SHIPYARD, VALLEJO.  CALIFORNIA, ACCRUING
 TO MR. CONNELL BY VIRTUE OF HIS STATUS AS AN OFFICIAL REPRESENTATIVE OF
 THE EXCLUSIVE BARGAINING REPRESENTATIVE.  THE FACT THAT THE GRIEVANCE
 WAS NOT FILED BY THE EXCLUSIVE REPRESENTATIVE IS ITS INSTITUTIONAL
 CAPACITY IS NOT CONSIDERED TO REQUIRE A DIFFERENT RESULT.  COMPARE
 DEPARTMENT OF DEFENSE, DEPENDENT SCHOOLS EUROPE, AND U.S. GEOLOGICAL
 SURVEY, SUPRA, WITH DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
 SERVICE, FRESNO SERVICE CENTER, A/SLMR NO.  983(1978).
 
    SUBSTANTIVE REASONS ALSO EXIST FOR THE DISMISSAL OF THE COMPLAINT.
 UNDER THE RULES AND REGULATIONS OF THE ASSISTANT SECRETARY, 29 C.F.R.
 SECTION 203.15, "(A) COMPLAINANT IN ASSERTING A VIOLATION OF THE ORDER
 SHALL HAVE THE BURDEN OF PROVING THE ALLEGATIONS OF THE COMPLAINT BY A
 PREPONDERANCE OF THE EVIDENCE." THIS BURDEN HAS NOT BEEN MET IN THIS
 CASE.  THE EVIDENCE SUPPORTS THE POSITION OF THE RESPONDENT THAT IT DID
 NOT UNILATERALLY CHANGE PAST PRACTICES, BUT MERELY IMPLEMENTED THE
 PROVISIONS OF THE NEW AGREEMENT BETWEEN THE PARTIES.
 
    THE PARTIES STIPULATED THAT DURING THE LIFE OF THE FIRST CONTRACT,
 MR. CONNELL WAS EXCUSED FROM HIS DUTIES TO CONFER WITH DESIGNATED
 REPRESENTATIVES AND THE NTEU NATIONAL OFFICE AND WAS PERMITTED TO CHARGE
 SUCH ACTIVITY TO HIS BANK OF TIME PROVIDED IN ARTICLE 6, SECTION 3A OF
 THE PREVIOUS CONTRACT.  AS NOTED UNDER ARTICLE 6, SECTION 3A, OF THE
 FIRST AGREEMENT, EMPLOYEE REPRESENTATIVES WERE "EXCUSED FROM DUTY
 WITHOUT CHARGE TO PAY OR LEAVE TO ADMINISTER THE TERMS AND CONDITIONS OF
 THE AGREEMENT." REPRESENTATIVES CHARGED THE AFORECITED USE OF TIME AWAY
 FROM THEIR DUTIES AGAINST THE BANK OF TIME PROVIDED FOR IN THE SAME
 SUBSECTION.  THE CONDITIONS UNDER WHICH EMPLOYEE REPRESENTATIVES COULD
 BE EXCUSED FROM THEIR DUTIES UNDER THIS SUBSECTION WAS VIRTUALLY
 UNLIMITED AS LONG AS THE USE OF TIME RELATED TO THE "ADMINISTRATION OF
 THE CONTRACT." THE STIPULATION REFLECT THAT ONE OF THE MATTERS MR.
 CONNELL CONFERRED WITH STEWARDS AND THE NTEU NATIONAL OFFICE ABOUT WAS
 "THE APPLICATION AND INTERPRETATION OF THE CONTRACT." HOWEVER, UNDER THE
 CURRENT CONTRACT A REPRESENTATIVE'S ENTITLEMENT TO USE "BANK TIME" IS
 MUCH MORE LIMITED BY SPECIFIC PROVISIONS IN THE CURRENT CONTRACT THAN IT
 WAS UNDER THE THE PREVIOUS CONTRAC.T ARTICLE 6, SECTION 3A 1, 2, AND 3
 PROVIDES FOR EMPLOYEES TO BE EXCUSED FROM THEIR DUTIES AND TO CHARGE THE
 ABSENCE TO "BANK TIME" ONLY FOR SPECIFIC FUNCTIONS.
 
    NOWHERE DOES THE CURRENT CONTRACT PROVIDE FOR THE CHIEF STEWARD OR
 CHAPTER PRESIDENT TO BE EXCUSED FROM THEIR DUTIES TO HAVE DISCUSSIONS
 WITH STEWARDS OR THE NTEU NATIONAL OFFICE, NOR IS THERE GENERAL LANGUAGE
 SIMILAR TO THE PREVIOUS CONTRACT UNDER WHICH SUCH ACTIVITIES COULD BE
 CLAIMED.  INSTEAD, A CHIEF STEWARD IS PROVIDED TIME FOR THE PURPOSE OF
 "DISCUSSING(ING) WITH EMPLOYEES POTENTIAL GRIEVANCES AND PREPARING
 GRIEVANCES." HE IS ALSO PROVIDED TIME FOR TRAVEL AND TO INTERVIEW
 WITNESSES.  A CHAPTER PRESIDENT IS ONLY ALLOWED ADMINISTRATIVE LEAVE "TO
 ATTEND THIRD STEP GRIEVANCE MEETINGS AND OTHER FORMAL DISCUSSIONS WITH
 THE EMPLOYER." UNION PROPOSALS FOR MORE GENERAL LANGUAGE AND FOR CHIEF
 STEWARDS AND CHAPTER PRESIDENTS TO CONFER WITH STEWARDS WAS DISCUSSED
 AND REJECTED.
 
    COMPLAINANT'S ARGUMENT THAT A STEWARD, CHIEF STEWARD, OR CHAPTER
 PRESIDENT IS ALLOWED TO CONFER WITH ONE ANOTHER OR OTHER UNION OFFICIALS
 UNDER ARTICLE 6, SECTION 3A.1 AS PART OF "PREPARING GRIEVANCES" OR
 "INTERVIEW(ING) WITNESSES," AND NEED NOT CHECK WITH THE IMMEDIATE
 SUPERVISOR UNDER ARTICLE 6, SECTION E.1 TO USE TIME UNDER THE ARTICLE
 UNLESS LEAVING THE WORK SITE, ARE ISSUES INVOLVING DIFFERING AND
 ARGUABLE INTERPRETATIONS OF THE NEGOTIATED AGREEMENT WHICH ARE PROPER
 SUBJECTS FOR RESOLUTION UNDER THE PARTIES' CONTRACTUAL
 GRIEVANCE-ARBITRATION PROCEDURE RATHER THAN THROUGH THE UNFAIR LABOR
 PRACTICE PROCEDURES OF THE EXECUTIVE ORDER.  CF. DEPARTMENT OF THE NAVY,
 NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, A/SLMR NO. 1115(1978).
 
    THE RECORD ALSO SUPPORTS RESPONDENT'S POSITION THAT THE DENIAL OF
 GOVERNMENT FACILITIES TO MR. CONNELL, SUCH AS TELEPHONES, POSTAGE, AND
 COPYING FACILITIES WAS BASED ON THE FACT THAT THE NEW CONTRACT HAD
 RECENTLY GONE INTO EFFECT AND THESE MATTERS HAD BEEN NEGOTIATED.  AS
 FOUND ABOVE, THE PAST PRACTICES WERE NEGOTIATED IN TERMS OF THE PARTIES'
 DEFINITIONS OF OFFICIAL TIME AND ADMINISTRATIVE LEAVE AND THE UNION'S
 PROPOSALS CONCERNING TELEPHONES AND THE USE OF THE INTERNAL MAIL SYSTEM.
 
    BASED ON THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS, IT IS
 DETERMINED THAT A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT A
 VIOLATION OF SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE ORDER, AS
 ALLEGED.
 
                              RECOMMENDATION
 
    HAVING FOUND THAT RESPONDENTS HAVE NOT ENGAGED IN CONDUCT PROHIBITED
 BY SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE ORDER, IT IS HEREBY
 RECOMMENDED THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS ENTIRETY.
 
                             GARVIN LEE OLIVER
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MAY 17, 1979
 
    WASHINGTON, D.C.
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE PRESENT 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 A