Department of the Navy, Naval Underwater Systems Center, Newport Naval Base (Respondent) and Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 (Complainant)

 



[ v03 p413 ]
03:0413(64)CA
The decision of the Authority follows:


 3FLRA No. 64
 
 DEPARTMENT OF THE NAVY,
 NAVAL UNDERWATER SYSTEMS CENTER,
 NEWPORT NAVAL BASE
 Respondent
 
 and
 
 FEDERAL UNION OF SCIENTISTS AND ENGINEERS,
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
 LOCAL R1-144
 Complainant
 
                                            Assistant Secretary
                                            Case No. 31-11669(CA)
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD
 NOT ENGAGED IN THE TWO UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT
 AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED.  THE COMPLAINANT,
 FEDERAL UNION OF SCIENTISTS AND ENGINEERS, NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES, LOCAL R1-144, (NAGE), FILED EXCEPTIONS TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT
 RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE TRANSFERRED TO
 THE AUTHORITY UNDER SEC. 304 OF REORGANIZATION PLAN NO. 2 OF 1978 (43
 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS IMPLEMENTED BY SEC. 2400.2
 OF THE AUTHORITY'S RULES AND REGULATIONS (45 F.R. 3482, JANUARY 17,
 1980).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE PERFORMANCE OF
 THESE FUNCTIONS AS PROVIDED IN SEC. 7135(B) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS SERVICE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SEC. 24002.2 OF THE AUTHORITY'S RULES AND
 REGULATIONS AND SEC. 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,
 INCLUDING THE EXCEPTIONS FILED BY THE COMPLAINANT, THE AUTHORITY HEREBY
 ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS, EXCEPT AS MODIFIED HEREIN.
 
    THE AMENDED COMPLAINT HEREIN ALLEGED, IN SUBSTANCE, THAT THE
 RESPONDENT VIOLATED SEC. 19(A)(1) AND (6) OF THE EXECUTIVE ORDER BY ITS
 ACTIONS IN AUGUST, SEPTEMBER AND NOVEMBER 1977, IN UNILATERALLY IMPOSING
 RESTRICTIONS ON THE UTILIZATION OF OFFICIAL TIME BY THE NAGE'S
 PRESIDENT, FOR REPRESENTATIONAL PURPOSES, AND ADDITIONALLY, BY REFUSING
 THE COMPLAINANT'S REQUEST FOR A COPY OF A MONTHLY RETENTION REGISTER
 PREPARED BY THE RESPONDENT.  IN RECOMMENDING THAT THE COMPLAINT BE
 DISMISSED IN ITS ENTIRETY, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE
 NAGE AND RESPONDENT HAD NOT NEGOTIATED AN AGREEMENT CONCERNING THE USE
 OF OFFICIAL TIME FOR REPRESENTATIONAL PURPOSES;  THE USE OF OFFICIAL
 TIME FOR SUCH PURPOSES IS NOT AN INHERENT RIGHT UNDER THE EXECUTIVE
 ORDER;  THAT THE NAGE'S PRESIDENT COULD NOT POSSIBLY HAVE SPENT
 LEGITIMATELY THE AMOUNT OF OFFICIAL TIME CREDITED TO HIM ON "UNION
 BUSINESS";  AND THE ACTIVITY'S ACTION WAS NOT AN UNREASONABLE
 RESTRICTION, WAS A REASONABLE INTERPRETATION OF THE FEDERAL PERSONNEL
 MANUAL, AND WAS CONSISTENT WITH MANAGEMENT'S PREROGATIVES UNDER SEC.
 12(B) OF THE ORDER.  IN ADDITION, THE ADMINISTRATIVE LAW JUDGE FOUND, IN
 ESSENCE, THAT THE MONTHLY RETENTION REGISTER SOUGHT BY THE NAGE WAS NOT
 NECESSARY AND RELEVANT INFORMATION NEEDED BY THE NAGE IN ORDER TO
 DISCHARGE ITS RESPONSIBILITIES AS THE EXCLUSIVE REPRESENTATIVE.
 
    CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY CONCLUDES
 THAT THE RESPONDENT VIOLATED SEC. 19(A)(1) AND (6) OF THE EXECUTIVE
 ORDER BY ITS ACTION IN RESTRICTING THE UTILIZATION OF OFFICIAL TIME BY
 THE PRESIDENT OF THE NAGE FOR REPRESENTATIONAL PURPOSES.  IT IS WELL
 SETTLED UNDER THE EXECUTIVE ORDER THAT THE USE OF OFFICIAL TIME FOR
 REPRESENTATIONAL ACTIVITIES OF AN EXCLUSIVE BARGAINING REPRESENTATIVE IS
 SUBJECT TO BARGAINING BY THE PARTIES AND, UPON AGREEMENT, TO BE REDUCED
 TO WRITING.  SEE MATTER OF GAO, NO. B-156287, 3 FLRC 874, FLRC NO.
 75P-1(1975).  IT IS ALSO WELL ESTABLISHED THAT PARTIES MAY ESTABLISH
 TERMS AND CONDITIONS OF EMPLOYMENT BY PRACTICE, OR OTHER FORM OF TACIT
 OR INFORMAL AGREEMENT, AND THAT THIS, LIKE OTHER ESTABLISHED TERMS AND
 CONDITIONS OF EMPLOYMENT, MAY NOT BE ALTERED BY EITHER PARTY IN THE
 ABSENCE OF AGREEMENT OR IMPASSE FOLLOWING GOOD FAITH BARGAINING.  SEE
 U.S. DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, NEW ORLEANS
 DISTRICT, 8 A/SLMR 497, A/SLMR NO. 1043(1978).
 
    AS MORE FULLY SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER, THE UTILIZATION BY THE PRESIDENT OF THE
 NAGE OF OFFICIAL TIME FOR REPRESENTATIONAL PURPOSES FOR UP TO 40 HOURS
 PER WEEK HAD BEEN CONSISTENTLY EXERCISED FOR AN EXTENDED PERIOD OF TIME
 WITH THE KNOWLEDGE AND CONSENT OF THE RESPONDENT'S SUPERVISORS.  IN THE
 AUTHORITY'S VIEW, THE PARTIES' ACTIONS CONSTITUTE THE ESTABLISHMENT BY
 PRACTICE OF A TERM AND CONDITION OF EMPLOYMENT.  UNDER THESE
 CIRCUMSTANCES, THE AUTHORITY CONCLUDES THAT RESPONDENT'S ACTIONS IN
 RESTRICTING THE AMOUNT OF OFFICIAL TIME AVAILABLE TO BE UTILIZED IN THE
 PRESIDENT OF THE NAGE WITHOUT FIRST NOTIFYING AND BARGAINING IN GOOD
 FAITH WITH THE NAGE CONSTITUTED A VIOLATION OF SEC. 19(A)(1) AND (6) OF
 THE ORDER.
 
    WE REACH THIS CONCLUSION WITHOUT DECIDING WHETHER OR NOT THERE WAS AN
 ABUSE OF THE OFFICIAL TIME ALLOWED FOR REPRESENTATIONAL PURPOSES BY THE
 UNION PRESIDENT HEREIN.  HOWEVER, THE AUTHORITY DOES NOT WISH TO LEAVE
 THE IMPRESSION THAT IT CONDONES, IN ANY WAY, ABUSE OR MISUSE OF OFFICIAL
 TIME BY UNION OFFICIALS.  IF AGENCY MANAGEMENT BELIEVES THAT A UNION
 OFFICIAL IS NOT USING OFFICIAL TIME FOR THE PERMITTED REPRESENTATIONAL
 PURPOSES BUT RATHER, IS ABUSING OR MISUSING ITS OFFICIAL TIME, IT MAY
 TAKE WHATEVER CORRECTIVE ACTION, INCLUDING DISCIPLINARY ACTION,
 CONSIDERED APPROPRIATE.  HOWEVER, AS NOTED ABOVE, SUCH CORRECTIVE OR
 DISCIPLINARY ACTION COULD NOT INVOLVE THE RESTRICTION OR ALTERATION OF
 AN ESTABLISHED PRACTICE OF ALLOWING A CERTAIN AMOUNT OF OFFICIAL TIME
 FOR REPRESENTATIONAL PURPOSES WITHOUT FIRST NEGOTIATING WITH THE
 EXCLUSIVE REPRESENTATIVE.
 
    FINALLY, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE
 AUTHORITY CONCLUDES THAT, IN THE ABSENCE OF EVIDENCE THAT THE MONTHLY
 RETENTION REGISTER WAS NECESSARY AND RELEVANT TO THE NAGE IN DISCHARGING
 ITS OBLIGATION TO EFFECTIVELY REPRESENT EMPLOYEES IN THE BARGAINING
 UNIT, THE REFUSAL OF THE RESPONDENT TO PROVIDE THE NAGE A COPY WITHOUT
 CHARGE DID NOT VIOLATE SEC. 19(A)(1) AND (6) OF THE ORDER.  /1/
 
                                   ORDER
 
    PURSUANT TO SEC. 2400.2 OF THE RULES AND REGULATIONS OF THE FEDERAL
 LABOR RELATIONS AUTHORITY AND SEC. 7135 OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE
 OFFICIAL IN CHARGE OF THE NAVAL UNDERWATER SYSTEMS CENTER, NEWPORT NAVAL
 BASE, DEPARTMENT OF THE NAVY, SHALL:
 
    1.  CEASE AND DESIST FROM
 
    (A) INSTITUTING CHANGES WITH RESPECT TO THE PRACTICE OF USING
 OFFICIAL TIME FOR THE PERFORMANCE OF REPRESENTATIONAL DUTIES, OR ANY
 OTHER TERM OR CONDITION OF EMPLOYMENT, WITHOUT FIRST NOTIFYING AND, UPON
 REQUEST, BARGAINING IN GOOD FAITH WITH THE FEDERAL UNION OF SCIENTISTS
 AND ENGINEERS, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
 R1-144, THE EXCLUSIVE REPRESENTATIVE OF THESE EMPLOYEES.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS:
 
    (A) RESCIND AND REVOKE THE TERMS AND CONDITIONS OF EMPLOYMENT SET
 FORTH IN THE MEMORANDUM OF AUGUST 5, 1977, CONCERNING THE USE OF
 OFFICIAL TIME BY UNION OFFICIALS PERFORMING REPRESENTATIONAL DUTIES, AND
 ANY SUBSEQUENT MEMORANDA ISSUED TO EFFECTUATE THEM.
 
    (B) UPON REQUEST, NEGOTIATE WITH THE FEDERAL UNION OF SCIENTISTS AND
 ENGINEERS, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-144,
 WITH RESPECT TO ANY PROPOSED CHANGES RELATING TO THE UTILIZATION BY
 UNION OFFICIALS OF OFFICIAL TIME TO PERFORM REPRESENTATIONAL DUTIES, OR
 ANY OTHER ESTABLISHED TERM OR CONDITION OF EMPLOYMENT.
 
    (C) POST AT THE NAVAL UNDERWATER SYSTEMS CENTER, NEWPORT NAVAL BASE,
 COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
 BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF THE FORMS,
 THEY SHALL BE SIGNED BY THE OFFICER IN CHARGE, AND THEY SHALL BE SIGNED
 BY THE OFFICER IN CHARGE, AND THEY SHALL BE POSTED AND MAINTAINED BY HIM
 FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
 PLACES WHERE NOTICES TO EMPLOYEES CUSTOMARILY ARE POSTED.  THE OFFICER
 IN CHARGE SHALL TAKE REASONABLE STEPS TO INSURE THAT NOTICES ARE NOT
 ALTERED, DEFACED, OR COVERED BY ANY MATERIAL.
 
    (D) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
 COMPLY HEREWITH.
 
    IT IS FURTHER ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 31-11669(CA), INSOFAR AS IT PERTAINS TO THE FAILURE OF THE
 RESPONDENT TO PROVIDE A MONTHLY RETENTION REGISTER, OUGHT TO BE, AND IT
 HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 16, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 
            RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
          POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
 
              CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT INSTITUTE CHANGES WITH RESPECT TO THE PRACTICE OF USING
 OFFICIAL TIME FOR THE PERFORMANCE OF REPRESENTATIONAL DUTIES, OR ANY
 OTHER TERM OR CONDITION OF EMPLOYMENT, WITHOUT FIRST NOTIFYING AND, UPON
 REQUEST, BARGAINING IN GOOD FAITH WITH THE FEDERAL UNION OF SCIENTISTS
 AND ENGINEERS, NATIONAL ASSOCIATION OF FAITH WITH THE FEDERAL UNION OF
 SCIENTISTS AND ENGINEERS, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
 LOCAL R1-144, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    WE WILL RESCIND AND REVOKE THE TERMS AND CONDITIONS OF EMPLOYMENT SET
 FORTH IN OUR MEMORANDUM OF AUGUST 5, 1977, CONCERNING THE USE OF
 OFFICIAL TIME BY UNION OFFICIALS PERFORMING REPRESENTATIONAL DUTIES, AND
 ANY SUBSEQUENT MEMORANDA ISSUED TO EFFECTUATE THEM.
 
    WE WILL, UPON REQUEST, NEGOTIATE WITH THE FEDERAL UNION OF SCIENTISTS
 AND ENGINEERS, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
 R1-144, WITH RESPECT TO ANY PROPOSED CHANGES RELATING TO THE UTILIZATION
 BY UNION OFFICIALS OF OFFICIAL TIME TO PERFORM REPRESENTATIONAL DUTIES,
 OR ANY OTHER ESTABLISHED TERM OR CONDITION OF EMPLOYMENT.
 
   .          .          .          .
 
 
                           (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, FOR THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE
 ADDRESS IS:  441 STUART STREET, 8TH FLOOR, BOSTON, MASSACHUSETTS 02116,
 AND WHOSE TELEPHONE NUMBER IS (617) 223-0920.
 
    BEFORE:  ROBERT G. MAHONY
 
                         ADMINISTRATIVE LAW JUDGE
 
    A. GENE NIRO, ESQ.
 
    DEPARTMENT OF THE NAVY
 
    666 SUMMER ST.
 
    BOSTON, MASSACHUSETTS 02210
 
                            FOR THE RESPONDENT
 
    RICHARD REMMES, ESQ.
 
    285 DORCHESTER AVE.
 
    SOUTH BOSTON, MASSACHUSETTS
 
                            FOR THE COMPLAINANT
 
                      RECOMMENDED DECISION AND ORDER
 
    THIS PROCEEDING ARISES UNDER THE PROVISIONS OF EXECUTIVE ORDER 11491,
 AS AMENDED, (HEREINAFTER REFERRED TO AS THE ORDER).  PURSUANT TO THE
 REGULATIONS OF THE ASSISTANT SECRETARY FOR LABOR MANAGEMENT RELATIONS
 (HEREINAFTER REFERRED TO AS THE ASSISTANT SECRETARY), A NOTICE OF
 HEARING ON COMPLAINT ISSUED ON SEPTEMBER 19, 1978 WITH REFERENCE TO
 ALLEGED VIOLATIONS OF SECTION 19(A)(1) AND (6) OF THE ORDER.  /2/
 
    THE COMPLAINT WAS FILED ON APRIL 24, 1978 AND AMENDED ON JULY 25,
 1978 AND AUGUST 24, 1978.  THE AMENDED COMPLAINT ALLEGED, IN ESSENCE,
 THAT MANAGEMENT, IN VIOLATION OF A VERBAL UNION PRESIDENT COULD DEVOTE
 TO REPRESENTATIONAL DUTIES, AND, ADDITIONALLY, MANAGEMENT REFUSED TO
 PROVIDE THE UNION WITH A COPY OF A MONTHLY RETENTION REGISTER.  /3/
 
    THE ACTIVITY ANSWERED ON JUNE 1, 1978 AND CONTENDED THAT ANY OFFICIAL
 TIME SPENT ON UNION ACTIVITIES MUST BE NEGOTIATED OR, IN THE ABSENCE OF
 A NEGOTIATED PERIOD, WITH THE PERMISSION OF MANAGEMENT.  IT WAS THE
 ACTIVITY'S POSITION THAT, ABSENT A NEGOTIATED AGREEMENT, A PERIOD OF ONE
 HOUR PER DAY WAS SUFFICIENT FOR THE UNION PRESIDENT TO CONDUCT NORMAL
 UNION BUSINESS.  HOWEVER, IF THE UNION FELT THAT THIS WAS INSUFFICIENT,
 MANAGEMENT INVITED NEGOTIATIONS ON THE MATTER.  THE ACTIVITY FURTHER
 STATED THAT THE UNION DID NOT GET A RETENTION REGISTER UNTIL IT AGREED
 TO PAY FOR THE DUPLICATION COSTS, AND, IN ANY EVENT, SUFFERED NO
 PREJUDICE BY NOT HAVING THE REGISTER.
 
    A HEARING WAS HELD ON DECEMBER 7, 1978 AT BOSTON, MASSACHUSETTS AT
 WHICH TIME THE PARTIES WERE GIVEN AN OPPORTUNITY TO EXAMINE WITNESSES,
 INTRODUCE DOCUMENTARY EVIDENCE AND PRESENT ORAL ARGUMENT.  THE RECORD
 REMAINED OPEN UNTIL FEBRUARY 15, 1979 FOR THE FILING OF BRIEFS WHICH
 HAVE BEEN CAREFULLY CONSIDERED.
 
                           STATEMENT OF THE CASE
 
    THE FEDERAL UNION OF SCIENTISTS AND ENGINEERS (FUSE), A DIVISION OF
 THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-144, BECAME
 THE EXCLUSIVE BARGAINING AGENT FOR THE PROFESSIONALS AT THE NAVAL
 UNDERWATER SYSTEMS CENTER (NUSC), NEWPORT, RHODE ISLAND ON MAY 21, 1976.
  DOMINIC LEPORE WAS ELECTED PRESIDENT OF THE LOCAL, WHICH CONSISTED OF
 ABOUT 500 TO 600 EMPLOYEES.  NO COLLECTIVE BARGAINING AGREEMENT WAS IN
 EXISTENCE DURING THE TIME COVERED BY THE COMPLAINT.
 
    FROM MAY 22, 1976 THROUGH SEPTEMBER 24, 1977, MR. LEPORE ACCOUNTED
 FOR PRACTICALLY ALL OF HIS WORKING HOURS BY ALLOCATING IT TO UNION
 BUSINESS.  ONLY 12 PERCENT OF HIS TIME WAS ALLOCATED TO ACTIVITY TASKS.
 /4/ LEPORE TOLD MR. LOUIS BISCI, HIS SUPERVISOR, THAT BECAUSE THIS WAS A
 NEW LOCAL, HE WAS SPENDING A GREAT DEAL OF TIME ON UNION BUSINESS TO
 DEVELOP A "PACKAGE" FOR NEGOTIATIONS.  HOWEVER, BY SEPTEMBER 1976, BISCI
 TESTIFIED THAT LEPORE'S WORK PERFORMANCE BECAME UNACCEPTABLE BECAUSE HE
 SPENT SO MUCH TIME ON ALLEGED UNION BUSINESS.
 
    ON OCTOBER 4, 1976, MR. BISCI ASKED MR. LEPORE, TO CRITIQUE A REPORT
 INVOLVING THE ADVANCED LIGHT WEIGHT TORPEDO PROGRAM.  BISCI CONSIDERED
 THIS A ONE OR TWO DAY JOB, BUT HE GAVE LEPORE UNTIL NOVEMBER 1, 1976.
 LEPORE ADVISED BISCI THAT HE WOULD ACCEPT THIS ASSIGNMENT BUT HE DIDN'T
 KNOW IF HE COULD COMPLETE THE TASK IN THE ALLOTTED TIME BECAUSE UNION
 BUSINESS HAD PRIORITY, AND HE INTENDED TO WORK ON UNION MATTERS.  /5/
 BISCI TESTIFIED THAT HE DID NOT KNOW THAT OFFICIAL TIME COULD NOT BE
 USED FOR NEGOTIATIONS.  LEPORE WAS ALSO UNABLE TO COMPLETE ANOTHER WORK
 ASSIGNMENT ALTHOUGH EXTENTIONS WERE GRANTED, BECAUSE HE TOOK THE
 POSITION THAT UNION BUSINESS CAME FIRST AND ACTIVITY WORK ASSIGNMENTS
 SECOND.
 
    ON OCTOBER 4, 1976, BISCI, BY MEMORANDUM, SOUGHT ADVICE FROM A
 PERSONNEL SPECIALIST, MS. DEBBIE PETTI AS TO HOW LEPORE WOULD BE ALLOWED
 TO SPEND HIS TIME BETWEEN THE UNION AND HIS WORK TASKS, BECAUSE BISCI
 WAS, FOR ALL PRACTICAL PURPOSES, COMPLETELY LOSING LEPORE'S SERVICES.
 ULTIMATELY, THE ISSUE OF LEPORE'S USE OF TIME WAS BROUGHT TO THE
 ATTENTION OF THE ACTIVITY'S LABOR RELATIONS SPECIALIST, STEWART FISHER,
 HE ADVISED THAT LEPORE WAS NOT AUTOMATICALLY ENTITLED TO
 REPRESENTATIONAL TIME, AND IT COULD BE OBTAINED ONLY BY MANAGEMENT
 GRANTING HIM TIME OR THROUGH NEGOTIATIONS.  STEWART ALSO ADVISED THAT
 LEPORE WAS REQUIRED TO DO THE WORK ASSIGNED TO HIM, AND THAT ASSIGNMENTS
 TO LEPORE SHOULD BE DOCUMENTED, AND A RECORD KEPT OF HIS WORK PROGRESS.
 HOWEVER, ALTHOUGH MANAGEMENT OFFICIALS CONTINUED TO DISCUSS WHAT TO DO
 ABOUT THE TIME LEPORE WAS ALLEGEDLY SPENDING ON UNION BUSINESS, NOTHING
 WAS DONE TO RESTRICT LEPORE'S TIME UNTIL AUGUST 5, 1977 WHEN LEPORE WAS
 ADVISED IN WRITING BY THE OFFICER-IN-CHARGE, CPT. W. E.  TRUEBLOOD, THAT
 HE WOULD BE GRANTED ONE HOUR PER DAY, IMMEDIATELY PRIOR TO HIS LUNCH
 HOUR, FOR THE CONDUCT OF UNION BUSINESS.  /6/
 
    BY MEMORANDUM DATED AUGUST 19, 1977.  MR. LEPORE, ON BEHALF OF FUSE
 REQUESTED TO NEGOTIATE REASONABLE TIME "FOR REPRESENTATIONAL DUTIES AND
 RESPONSIBILITIES BEGINNING ON SEPTEMBER 13, 1977.  IN ADDITION FUSE
 REQUESTS A STATUS QUO ANTE UNTIL THE ISSUE IS RESOLVED." THE SEPT. 13TH
 DATE WAS SUGGESTED TO THE UNION CHIEF NEGOTIATOR COULD BE AVAILABLE.
 
    BY LETTER DATED AUGUST 23, 1977., CPT. TRUEBLOOD DENIED THE UNION
 REQUEST FOR A STATUS QUO ANTE, AND INSISTED THAT LEPORE RESTRICT HIS
 TIME TO THE ONE HOUR PER DAY.  HOWEVER, THE EFFECTIVE DATE OF THIS
 DIRECTIVE WAS EXTENDED FROM AUGUST 23, 1977 UNTIL SEPTEMBER 6, 1977 "TO
 PROVIDE FOR THE TRANSITION IN THE INTERNAL WORK LOAD OF YOUR
 ORGANIZATION".  NEVERTHELESS, LEPORE EFFECTIVELY IGNORED THIS DIRECTIVE
 AND CONTINUED TO SPEND MOST OF HIS TIME ON ALLEGED UNION BUSINESS.
 
    BY LETTERS DATED SEPTEMBER 12, 1977 AND NOVEMBER 23, 1977, CPT.
 TRUEBLOOD, EXPRESSED CONCERN THAT MR. LEPORE FELT HE COULD NOT ABIDE BY
 THE ONE HOUR PER DAY LIMIT.  IT WAS POINTED OUT THAT IN THE SEVEN WEEKS
 FROM SEPT. 12, 1977 TO OCTOBER 29, 1977 MR. LEPORE UTILIZED A MINIMUM OF
 33% AND A MAXIMUM OF 100% OF HIS TIME ON UNION REPRESENTATIONAL
 ACTIVITIES.  CPT. TRUEBLOOD WENT ON TO STATE:
 
    IN AS MUCH AS THERE HAS NOT BEEN AN IMPROVEMENT IN THE AMOUNT OF TIME
 YOU HAVE SPENT
 
    CONDUCTING GOVERNMENT BUSINESS AS A RESULT OF MY LETTER TO YOU DATED
 5 AUGUST 1977 AND 12
 
    SEPTEMBER 1977, YOU ARE HEREBY DIRECTED TO USE NO MORE THAN ONE (1)
 PER DAY PERFORMING
 
    REPRESENTATIONAL DUTIES.  ALL VISITS, ALL CALLS, THOSE SITUATIONS
 THAT YOU HAVE CLASSIFIED AS
 
    "EMERGENCIES" DURING THE PAST FEW MONTHS, AND ANY OTHER UNION
 REPRESENTATIONAL
 
    RESPONSIBILITIES, MUST BE DEFERRED TO A TIME BETWEEN THE HOURS OF
 1100 AND 1200 DAILY, OR
 
    DURING NON-WORKING HOURS.  NON-WORK HOURS ARE THOSE HOURS BEFORE AND
 AFTER WORK AND DURING
 
    YOUR LUNCH PERIOD, AND ANYTIME FOR WHICH YOUR SUPERVISOR HAS APPROVED
 YOUR REQUEST FOR
 
    LEAVE.  DEVIATIONS FROM THIS REQUIREMENT WHICH WILL BECOME EFFECTIVE
 THE BEGINNING OF THE
 
    FIRST WORKDAY FOLLOWING YOUR RECEIPT OF THIS LETTER, WILL NOT BE
 ALLOWED.
 
    THE UNION ALSO ALLEGES THAT IT WAS IMPROPERLY DENIED A DOCUMENT
 REFERRED TO AS A "RETENTION REGISTER".  THE ACTIVITY'S POSITION IS THAT
 A "SANITIZED" VERSION OF THE RETENTION REGISTER WOULD BE PROVIDED IF THE
 UNION AGREED TO PAY FOR IT.  FURTHER, IN THE EVENT OF A REDUCTION IN
 FORCE (RIF), A REGISTER WOULD BE PROVIDED TO THE UNION FREE OF CHARGE.
 
    THE EVIDENCE CONCERNING THE "RETENTION REGISTER" IS AS FOLLOWS.
 
    BY LETTER DATED FEB. 14, 1977, MR. STEWART FISHER, THE ACTIVITY'S
 LABOR RELATIONS SPECIALIST STATED TO MR. LEPORE:
 
    SOMETIME AGO YOU REQUESTED TO BE PROVIDED WITH A COPY OF THE NUSC
 RETENTION REGISTER ON A
 
    MONTHLY BASIS.  I INITIALLY INFORMED YOU THAT BECAUSE OF THE PRIVACY
 ACT WE COULD ONLY PROVIDE
 
    YOU WITH A SANITIZED VERSION OF THIS REGISTER.  THIS SANITIZED
 VERSION WOULD INCLUDE POSITION
 
    TITLE, SERIES AND GRADE, NAME AND SPECIALTY TITLE (WHEN THEY BECAME
 EFFECTIVE).  ALL REGISTERS
 
    ARE SET UP BY COMPETITIVE AREA AND COMPETITIVE LEVEL.  THE COST OF A
 COPY OF THE INITIAL
 
    REGISTER WOULD BE $15.00 PLUS FIVE CENTS PER PAGE WITH APPROXIMATELY
 20 PAGES.  SUBSEQUENT
 
    MONTHLY COPIES OF THIS REGISTER WOULD COST 2.00 PLUS FIVE CENTS PER
 PAGE, WITH THE SAME
 
    APPROXIMATE NUMBER OF PAGES.  IF YOU DESIRE COPIES OF THIS REGISTER,
 PLEASE NOTIFY ME AND
 
    ARRANGEMENTS WILL BE MADE FOR YOUR RECEIPT OF SAME.
 
    ALMOST SIX MONTHS LATER ON AUGUST 3, 1977, LEPORE REPLIED AS FOLLOWS:
 
    FUSE EXERCISES ITS RIGHTS TO REQUEST A COPY OF THE RETENTION REGISTER
 BASED ON THE FACTS OF
 
    THE ANNOUNCEMENT OF A RIF (LARGE OR SMALL) IN THE NEAR FUTURE, TO
 MEET CEILING REQUIREMENTS.
 
    ON JANUARY 26, 1978 LEPORE, ON BEHALF OF FUSE, WROTE TO FISHER
 CONTENDING THAT THE UNION REQUESTED A COPY OF THE RETENTION REGISTER ON
 OCTOBER 6, 1976 AS WELL AS ON SEVERAL OTHER OCCASIONS AND STATED THAT IT
 WAS NEGOTIATED THAT THE UNION WAS TO GET A MONTHLY COPY OF THE SANITIZED
 REGISTER.  IN THIS LETTER FUSE ACCUSED THE ACTIVITY OF DILATORY TACTICS
 IN SUPPLYING THE REGISTER.  AFTER SOME FURTHER CORRESPONDENCE, THE
 REGISTER WAS PROVIDED TO THE UNION ON APRIL 4, 1978, THE UNION PAID THE
 $10.35 CHARGE ON MAY 27, 1978.  IN AUGUST, 1978 THE UNION WAS GIVEN A
 SECOND RETENTION REGISTER FREE OF CHARGE THAT MANAGEMENT USED IN
 CONNECTION WITH (RIF), ALTHOUGH THIS RIF DID NOT AFFECT MEMBERS OF
 LEPORE'S UNION.
 
                                  ISSUES
 
    1.  DID THE USE OF UP TO FORTY HOURS PER WEEK FROM MAY 21, 1976 TO
 AUGUST 5, 1977 FOR UNION REPRESENTATIONAL FUNCTIONS BY THE UNION
 PRESIDENT CONSTITUTE AN ESTABLISHED PAST PRACTICE?
 
    2.  DID THE ACTIVITY VIOLATE SECTION 19(A)(1) AND (6) OF THE ORDER BY
 UNILATERALLY RESTRICTING TO ONE HOUR PER DAY THE AMOUNT OF TIME THE
 UNION PRESIDENT COULD DEVOTE THE REPRESENTATIONAL FUNCTIONS?
 
    3.  DID THE ACTIVITY VIOLATE SECTION 19(A)(1) AND (6) OF THE ORDER BY
 REQUIRING PAYMENT FROM THE UNION IN ORDER FOR THE UNION TO RECEIVE A
 MONTHLY RETENTION REGISTER FOR PERIODS OTHER THAN WHEN A REDUCTION IN
 FORCE WAS TO BE EFFECTUATED.
 
                                DISCUSSION
 
    I.  USE OF OFFICIAL TIME
 
    COMPLAINANT CONTENDS, IN ESSENCE, THAT IT WAS AN ESTABLISHED PRACTICE
 FOR THE UNION PRESIDENT TO SPEND UP TO 40 HOURS PER WEEK FOR
 UNION-RELATED BUSINESS;  THAT THIS PRACTICE CONTINUED FOR OVER ONE YEAR,
 AND WHEN THE ACTIVITY UNILATERALLY IMPOSED A LIMITATION ON THE AMOUNT OF
 TIME MR. LEPORE COULD SPEND ON BUSINESS, IT VIOLATED SECTION 19(A)(1)
 AND (6) OF THE ORDER.
 
    IT HAS BEEN HELD BY THE ASSISTANT SECRETARY THAT THE USE OF OFFICIAL
 TIME FOR THE CONDUCT OF UNION BUSINESS IN NOT AN INHERENT RIGHT UNDER
 THE ORDER.  DEPARTMENT OF THE AIR FORCE, BASE PROCUREMENT OFFICE,
 VANDENBERG AIR FORCE BASE CALIFORNIA, A/SLMR NO.  485(1975);  DEPARTMENT
 OF THE ARMY, PICATINNY ARSENAL DOVER, NEW JERSEY A/SLMR NO. 512(1975).
 
    WHEN THE BARGAINING UNIT WAS FORMED IN MAY 1976, AND MR. LEPORE
 BECAME PRESIDENT, HE APPARENTLY PERSUADED HIS FIRST LINE SUPERVISOR, MR.
 BISCI, THAT THE LARGE AMOUNT OF TIME BEING SPEND ON UNION BUSINESS WAS
 REQUIRED TO PUT TOGETHER A BARGAINING "PACKAGE" FOR NEGOTIATIONS.  BISCI
 TESTIFIED THAT MANAGEMENT IN THE INITIAL DAYS OF THE UNION EXISTENCE,
 WANTED TO BE COOPERATIVE IN ASSISTING THE UNION IN ESTABLISHING ITSELF.
 BASED ON LEPORE'S REPRESENTATIONS, BISCI WAS UNDER THE IMPRESSION THAT
 LEPORE'S TIME ON ALLEGED UNION BUSINESS WOULD NOT CONTINUE OVER A
 PROLONGED PERIOD.
 
    ONCE, HOWEVER, IT BECAME APPARENT THAT LEPORE COULD NOT OR WOULD NOT
 MEANINGFULLY PERFORM ACTIVITY TASKS BECAUSE OF HIS ALLEGED
 REPRESENTATIONAL DUTIES, THIS BECAME THE SUBJECT OF DISCUSSIONS BETWEEN
 MR. BISCI AND THE ACTIVITY'S PERSONNEL AND LABOR MANAGEMENT SPECIALISTS.
  HOWEVER, THE OFFICER-IN-CHARGE OF THE ACTIVITY, CPT.  TRUEBLOOD, WAS
 NOT AWARE OF THE PROBLEM UNTIL ABOUT ONE MONTH BEFORE HE ISSUED HIS
 AUGUST 5, 1977 LETTER RESTRICTING LEPORE'S TIME TO ONE HOUR PER DAY.
 
    SINCE, THE PARTIES DID NOT HAVE A NEGOTIATED AGREEMENT THAT COVERED
 THE USE OF OFFICIAL TIME FOR REPRESENTATIONAL PURPOSES, THE
 OFFICER-IN-CHARGE BASED HIS DECISION UPON THE FPM GUIDELINES IMPOSING
 WHAT HE DETERMINED TO BE A REASONABLE AMOUNT OF TIME FOR UNION BUSINESS.
 
    OF COURSE, WHAT IS REASONABLE HAS TO BE DETERMINED IN THE CONTEXT OF
 A GIVEN SET OF FACTS AND CIRCUMSTANCES.
 
    AFTER OBSERVING MR. LEPORE'S DEMEANOR, AND LISTENING TO HIS TESTIMONY
 IN HIS EFFORT TO ACCOUNT FOR THE TIME HE ALLEGEDLY SPENT ON UNION
 BUSINESS, I FIND THAT HIS ENTIRE TESTIMONY IS TOTALLY UNBELIEVABLE AND I
 ACCORD IT NO WEIGHT WHATSOEVER.  HE WAS EVASIVE, UNRESPONSIVE AND
 UNPERSUASIVE.  HIS DOCUMENTATION, WHICH GENERALLY CONSISTED OF A FEW
 PIECES OF PAPER WITH CRYPTIC NOTES DOCUMENTING HIS "HELP AND ADVISE" TO
 UNION MEMBERS, WAS TOTALLY UNRELIABLE AS A GAUGE OF TIME SPENT ON UNION
 BUSINESS.  I FIND AND CONCLUDE THAT LEPORE COULD NOT POSSIBLY HAVE
 LEGITIMATELY SPENT ANYWHERE NEAR THE HUNDREDS OF HOURS ON "UNION
 BUSINESS" THAT HE ATTEMPTED TO JUSTIFY.  MORE LIKELY, HE USED HIS
 POSITION AS UNION PRESIDENT TO AVOID PERFORMING HIS ACTIVITY TASKS.
 
    ON THE RECORD IN THIS CASE, I FIND AND CONCLUDE THAT THE DECISION OF
 THE ACTIVITY TO PROVIDE MR. LEPORE ONE HOUR PER DAY FOR UNION BUSINESS
 WAS, IN THE ABSENCE OF ANY NEGOTIATED AGREEMENT OR CREDIBLE EVIDENCE
 THAT THIS WAS AN UNREASONABLE RESTRICTION, A REASONABLE INTERPRETATION
 OF THE FEDERAL PERSONNEL MANUAL CONCERNING THE USE OF OFFICIAL TIME FOR
 UNION BUSINESS, AND CONSISTENT WITH MANAGEMENT'S PREROGATIVES UNDER
 SECTION 12(B) OF THE ORDER.
 
    THERE IS NO CREDIBLE EVIDENCE THAT MANAGEMENT REFUSED TO CONSULT,
 CONFER OR NEGOTIATE WITH THE COMPLAINANT ON THE ISSUE OF
 REPRESENTATIONAL TIME AND I FIND AND CONCLUDE THAT THE DIRECTION TO MR.
 LEPORE, TO LIMIT HIS TIME SPENT ON UNION BUSINESS TO ONE HOUR PER DAY,
 WHICH IN ANY EVENT HE EFFECTIVELY IGNORED, WAS NOT A VIOLATION OF
 SECTION 19(A)(1) AND (6) OF THE ORDER.
 
    THE MONTHLY RETENTION REGISTER
 
    "RETENTION REGISTERS" ARE DOCUMENTS USED BY MANAGEMENT FOR JOB
 REASSIGNMENTS OR SEPARATIONS IN THE EVENT OF A REDUCTION IN FORCE (RIF).
  THE ACTIVITY MAINTAINS A "MONTHLY RETENTION GROUP REPORT," WHICH COULD
 NOT BE USED IN THE EVENT OF A RIF, UNTIL IT WAS UPDATED BECAUSE IT DOES
 NOT REFLECT PERSONNEL CHANGES THAT OCCUR ON A DAILY BASIS.
 
    IN JULY 1976, MR. LEPORE REQUESTED A "RETENTION REGISTER" FROM MR.
 FISHER.  FISHER TOLD LEPORE HE COULD GET A "SANITIZED" VERSION (DELETING
 INFORMATION COVERED BY THE PRIVACY ACT) IF THE UNION PAID FOR IT,
 BECAUSE IT WOULD HAVE TO BE SPECIALLY PREPARED FOR THE UNION AS IT WAS
 NOT KEPT IN THE ORDINARY COURSE OF BUSINESS.  FISHER TESTIFIED THAT, BY
 REGULATION, THE UNION IS ONLY ENTITLED TO A FREE COPY OF THE ACTUAL
 RETENTION REGISTER AFTER A RIF IS ANNOUNCED.  DURING OCTOBER THE ISSUE
 OF OBTAINING A REGISTER WAS BROUGHT UP IN DISCUSSIONS BETWEEN THE
 PARTIES, BUT THERE IS NO CREDIBLE EVIDENCE THAT ESTABLISHES WHETHER AT
 THIS TIME, MANAGEMENT REQUESTED PAYMENT IN ADVANCE OR WHETHER THE UNION
 AGREED TO PAY AFTER IT WAS SENT.
 
    THE MOST CREDIBLE EVIDENCE ON THE ISSUE OF THE RETENTION REGISTER
 BEGINS WITH THE FEBRUARY 14, 1977 LETTER FROM THE ACTIVITY WHICH ADVISED
 LEPORE THAT HE COULD HAVE A COPY OF THE REGISTER AND THE APPROXIMATE
 COST.  LEPORE, ON BEHALF OF THE UNION, DID NOT RESPOND UNTIL OCTOBER 3,
 1977 REQUESTING A COPY OF THE REGISTER ON THE ASSUMPTION THAT A RIF WAS
 COMING IN THE NEAR FUTURE.  CERTAINLY, BY WAITING ALMOST EIGHT MONTHS TO
 REPLY IT APPEARS THAT THE UNION WAS IN NO HURRY TO OBTAIN THE REGISTER
 PRIOR TO RECEIVING SOME INFORMATION THAT A RIF MIGHT OCCUR.
 
    LEPORE RENEWED HIS REQUEST ON JANUARY 26, 1978 CONTENDING THAT THE
 PARTIES HAD "NEGOTIATED" ON OCTOBER 7, 1976 THAT THE UNION WOULD BE
 PROVIDED WITH A "SANITIZED" VERSION OF THE REGISTER.  SUBSEQUENTLY,
 LEPORE ADVISED FISHER THAT THE UNION WOULD PAY, AND ON APRIL 4, 1978 A
 VALIDATED RETENTION REGISTER WAS FURNISHED TO LEPORE.  THE COST WAS
 $10.35 AND WAS PAID ON MAY 27, 1978.  IN AUGUST, 1978 A RIF OCCURRED AND
 THE UNION WAS GIVEN, WITHOUT CHARGE, A SECOND RETENTION REGISTER THAT
 WAS USED IN THE RIF.
 
    I FIND AND CONCLUDE THAT THERE IS NO CREDIBLE EVIDENCE OF ANY
 AGREEMENT BETWEEN THE PARTIES TO EITHER PROVIDE OR PAY FOR A RETENTION
 REGISTER IN OCTOBER, 1976.  THE FIRST DEFINITIVE PIECE OF EVIDENCE THAT
 I CREDIT ON THIS ISSUE IS THE FEBRUARY 14, 1977 LETTER WHICH CONSISTED
 AN OFFER TO SELL A COPY OF THE REGISTER, WHICH WAS ULTIMATELY ACCEPTED
 AND PAYMENT TENDERED.  THE UNION OFFERED NO CREDIBLE EVIDENCE THAT IT
 NEEDED SUCH A DOCUMENT, ABSENT A BONA FIDE RIF, IN ORDER TO EXERCISE ITS
 RIGHTS AND RESPONSIBILITIES UNDER SECTION 10(E) OF THE ORDER.
 
    FOR THE FOREGOING REASONS I FIND THAT THERE IS NO EVIDENCE THAT
 SECTION 19(A)(1) AND (6) OF THE ORDER WAS VIOLATED BY THE ALLEGED
 FAILURE TO PROVIDE A RETENTION REGISTER.
 
    I FURTHER FIND AND CONCLUDE THAT BASED UPON THE ENTIRE RECORD IN THIS
 CASE THE COMPLAINANT HAS FAILED TO PROVE BY A PREPONDERANCE OF THE
 EVIDENCE THAT THE ACTIVITY COMMITTED ANY VIOLATION OF SECTION 19(A)(1)
 AND (6) OF THE ORDER.
 
                              RECOMMENDATION
 
    IT IS RECOMMENDED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 
                             ROBERT G. MAHONY
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JULY 26, 1979
 
    WASHINGTON, D.C.
 
    RFM:PAC
 
    /1/ IN CONFORMITY WITH SEC. 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 ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /2/ SECTION 19 STATES, IN PERTINENT PART:
 
    (A) AGENCY MANAGEMENT SHALL NOT--
 
    (1) INTERFERE WITH, RESTRAIN OR COERCE AN EMPLOYEE IN THE EXERCISE OF
 THE RIGHTS ASSURED BY THIS ORDER;
 
    (6) REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION
 AS REQUIRED BY THIS ORDER.
 
    /3/ THE SECOND AMENDED COMPLAINT WITHDREW THE ALLEGATION THAT
 MANAGEMENT IMPROPERLY INTERFERED IN THE INTERNAL AFFAIRS OF THE UNION.
 THEREFORE, THIS ISSUE WILL NOT BE DISCUSSED HEREIN.
 
    /4/ (TABLE OMITTED)
 
    /5/ BISCI TESTIFIED THAT LEPORE MET THE NOV. 1ST DEADLINE BUT THE
 WORK PRODUCT WAS UNSATISFACTORY.  LEPORE WAS GIVEN TO NOVEMBER 22ND TO
 COMPLETE THE TASK.  HE MET THE NOVEMBER 22ND DEADLINE, BUT ADVISED BISCI
 THAT HE WISHED HE COULD DO A BETTER JOB, HOWEVER;  UNION BUSINESS TOOK
 PRECEDENCE.
 
    /6/ . . . THE FOLLOWING EXCERPTS TAKEN FROM REFERENCE (C) (FPM LTR
 711-114 DTD 14 OCT. 1976) APTLY STATE THE POSITION TAKEN BY THIS CENTER
 RELATIVE TO THE BALANCE BETWEEN THE USE OF OFFICIAL TIME ALLOWED TO
 LABOR ORGANIZATION OFFICIALS WHEN PERFORMING REPRESENTATIONAL DUTIES AND
 THE PERFORMANCE OF THE GOVERNMENT'S BUSINESS.
 
    A.  "IN ALL CASES, THE AMOUNT OF OFFICIAL TIME TO BE AUTHORIZED AND
 THE NUMBER OF EMPLOYEES AUTHORIZED TO BE ON OFFICIAL TIME FOR
 REPRESENTATIONAL FUNCTIONS SHOULD BE DETERMINED BY BALANCING THE
 EFFECTIVE CONDUCT OF THE GOVERNMENT'S BUSINESS WITH THE RIGHTS OF
 EMPLOYEES TO BE REPRESENTED IN MATTERS RELATING TO THEIR EMPLOYMENT."
 
    B.  "ALSO RELEVANT TO THIS DECISION IS MANAGEMENT'S JUDGMENT AS TO
 THE IMPACT UPON EMPLOYEE PERFORMANCE AND EFFICIENCY, AS WELL AS ON THE
 EFFICIENT ADMINISTRATION OF GOVERNMENT THAT WILL DERIVE FROM EMPLOYEE
 REPRESENTATION IN THE DECISION MAKING PROCESS."
 
    C.  "IN NO CIRCUMSTANCES SHOULD THE AMOUNT APPROVED RESULT IN SERIOUS
 INTERFERENCE WITH THE ASSIGNED RESPONSIBILITIES OF THE ACTIVITY OR BE
 UNJUSTIFIABLE IN LIGHT OF THE BENEFITS, INCLUDING SOUND LABOR MANAGEMENT
 RELATIONS, TO BE DERIVED."
 
    D.  THEREFORE, USING THE ABOVE GUIDANCE, YOU ARE REQUIRED TO PERFORM
 ALL ASSIGNED TASKS IN A MANNER COMMENSURATE WITH YOUR GRADE LEVEL AND
 WITHIN THE IMPOSED TIME LIMITATIONS.  YOU ARE HEREBY AUTHORIZED ONE (1)
 HOUR PER DAY TO SPEND ON UNION REPRESENTATIONAL DUTIES AND
 RESPONSIBILITIES.  THIS HOUR WILL BE SPENT IN THE NAGE UNION OFFICE ON
 THE SECOND FLOOR OF BUILDING 148, AND WILL BE THE HOUR IMMEDIATELY PRIOR
 TO YOUR LUNCH PERIOD.  YOU WILL, THEREFORE, BE ACCOUNTABLE TO YOUR
 SUPERVISOR FOR THE PERFORMANCE OF ASSIGNED GOVERNMENT BUSINESS ON THE
 BASIS OF SEVEN (7) HOURS PER DAY, EXCLUSIVE OF LEAVE OR OTHER OFFICIALLY
 ASSIGNED OR ACCEPTED DUTIES.  ALL NORMAL UNION BUSINESS WILL BE DEFERRED
 TO THIS ONE (1) HOUR THAT YOU WILL BE LOCATED IN THE NAGE OFFICE.
 TELEPHONE CALLS AND VISITS FROM UNION SOURCES AND EMERGENCY CALLS AND
 VISITS FROM EMPLOYEES MAY BE RECEIVED AT YOUR NORMAL WORK SITE;
 HOWEVER, YOU MUST FIRST SEEK PERMISSION FROM YOUR SUPERVISOR PRIOR TO
 LEAVING YOUR WORK TO HANDLE THESE SITUATIONS.  IF YOU FIND THAT
 COMPLICATIONS ARISE BETWEEN TRYING TO SATISFY THE BALANCE BETWEEN THE
 GOVERNMENT'S BUSINESS AND YOUR REPRESENTATIONAL RESPONSIBILITIES, YOU
 MUST FIRST SEEK APPROVAL FROM YOUR SUPERVISOR TO DEVIATE FROM HIS
 DIRECTION.  ULTIMATELY, YOU MUST ABIDE BY THIS DISCRETION AND BRING THE
 ISSUE TO MY ATTENTION IF YOU FEEL THAT IT IS NECESSARY TO DO SO.  IF YOU
 DO NOT FEEL THAT THIS IS A REASONABLE POSITION, THEN YOUR REQUEST TO
 NEGOTIATE THIS ISSUE IS WELCOMED.