Department of Health, Education and Welfare, Region V, Chicago, Illinois (Respondent) and American Federation of Government Employees, Local 3400, AFL-CIO (Charging Party)

 



[ v04 p736 ]
04:0736(98)CA
The decision of the Authority follows:


 4 FLRA No. 98
 
 DEPARTMENT OF HEALTH, EDUCATION
 AND WELFARE, REGION V,
 CHICAGO, ILLINOIS
 Respondent
 
 and
 
 LOCAL 3400, AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case Nos. 5-CA-37 
                                                      5-CA-72 
                                                      5-CA-116
 
                            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 UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND
 RECOMMENDING THAT THE COMPLAINT BE DISMISSED.  THEREAFTER, BOTH THE
 CHARGING PARTY AND THE GENERAL COUNSEL FILED EXCEPTIONS TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE
 RESPONDENT FILED AN OPPOSITION TO SUCH EXCEPTIONS.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (5 U.S.C. 7101-7135), 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 EXCEPTIONS FILED BY THE CHARGING PARTY AND GENERAL
 COUNSEL AND THE RESPONDENT'S OPPOSITION TO SUCH EXCEPTIONS, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATIONS, AS MODIFIED BELOW.
 
    IN THE INSTANT CASE, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE
 RESPONDENT DID NOT VIOLATE SECTION 7116(A)(1), (2) AND (5) OF THE
 STATUTE, AS ALLEGED, BY REQUIRING THE LOCAL UNION PRESIDENT AND ANOTHER
 UNION REPRESENTATIVE TO OBTAIN ADVANCE APPROVAL FOR RELEASE FROM DUTY IN
 ORDER TO ENGAGE IN UNION ACTIVITIES DURING WORKING HOURS PURSUANT TO THE
 TERMS OF THE PARTIES' AGREEMENT, AND BY ISSUING A REPRIMAND TO THE UNION
 PRESIDENT FOR HIS EXPRESS REFUSAL TO COMPLY WITH SUCH REQUIREMENT.  IN
 SO CONCLUDING, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE PARTIES'
 AGREEMENT SPECIFICALLY REQUIRED LOCAL UNION OFFICERS AND STEWARDS TO BE
 RELEASED FROM DUTY BY THEIR IMMEDIATE SUPERVISORS BEFORE ENGAGING IN
 UNION ACTIVITIES DURING WORKING HOURS AND SUCH REQUIREMENT HAD BEEN
 FOLLOWED CONSISTENTLY IN THE REGION.  HE FURTHER FOUND THAT THE LOCAL
 UNION PRESIDENT FOR A NUMBER OF MONTHS HAD BEEN ACCOUNTING FOR HIS TIME
 SPENT ON UNION ACTIVITIES BY SUBMITTING A WEEKLY WRITTEN REPORT TO HIS
 SUPERVISOR;  THAT SUCH PRACTICE HAD BECOME AN ESTABLISHED TERM AND
 CONDITION OF EMPLOYMENT AS TO THE LOCAL UNION PRESIDENT WHICH THE
 RESPONDENT COULD NOT UNILATERALLY CHANGE;  BUT THAT THE RESPONDENT WAS
 NOT PRECLUDED FROM CHANGING THAT PRACTICE BY REQUIRING COMPLIANCE WITH
 THE NEGOTIATED AGREEMENT AFTER THE PARTIES HAD NEGOTIATED IN GOOD FAITH
 AT THE UNION'S REQUEST CONCERNING THE MATTER.
 
    IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, BUT IN PART FOR
 DIFFERENT REASONS, THE AUTHORITY FINDS THAT THE RESPONDENT DID NOT
 VIOLATE SECTION 7116(A)(1), (2) AND (5) OF THE STATUTE IN THE
 CIRCUMSTANCES OF THIS CASE, AND THAT THE CONSOLIDATED COMPLAINT HEREIN
 SHOULD BE DISMISSED IN ITS ENTIRETY.  MORE SPECIFICALLY, THE AUTHORITY
 FINDS THAT THE RESPONDENT DID NOT VIOLATE THE STATUTE IN THE PARTICULAR
 CIRCUMSTANCES OF THIS CASE BY INSISTING THAT THE LOCAL UNION PRESIDENT
 COMPLY WITH THE TERMS OF THE PARTIES' NEGOTIATED AGREEMENT, AS
 CONSISTENTLY INTERPRETED AND APPLIED, WHICH REQUIRE THAT LOCAL UNION
 OFFICERS BE RELEASED FROM DUTY BY THEIR IMMEDIATE SUPERVISORS BEFORE
 ENGAGING IN UNION ACTIVITIES DURING WORKING TIME.  IN THIS REGARD, THE
 AUTHORITY CONCLUDES THAT THE RESPONDENT'S NOTICE TO THE LOCAL UNION
 PRESIDENT CONCERNING HIS NEED TO OBTAIN ADVANCE APPROVAL FOR RELEASE
 FROM DUTY BEFORE ENGAGING IN UNION ACTIVITIES DID NOT CONSTITUTE A
 CHANGE IN CONDITIONS OF EMPLOYMENT BUT RATHER WAS A REAFFIRMATION OF THE
 ESTABLISHED POLICY WHICH WAS INTENDED TO ENSURE UNIFORMITY OF
 ENFORCEMENT AMONG ALL EMPLOYEES OF THE RESPONDENT.  THUS, AS THE
 ADMINISTRATIVE LAW JUDGE FOUND AND THE RECORD DEMONSTRATES, DURING THE
 LIFE OF THE PARTIES' AGREEMENT ALL UNION REPRESENTATIVES-- INCLUDING THE
 UNION PRESIDENT'S PREDECESSOR IN THAT OFFICE-- HAD BEEN REQUIRED TO
 REQUEST RELEASE TIME, IN ADVANCE, TO ENGAGE IN UNION REPRESENTATIONAL
 ACTIVITIES.  ACCORDINGLY, IN CONCLUDING THAT THE RESPONDENT DID NOT
 VIOLATE SECTION 7116(A)(1), (2) AND (5) OF THE STATUTE IN THE
 CIRCUMSTANCES PRESENTED, THE AUTHORITY FINDS IT UNNECESSARY TO REACH OR
 PASS UPON WHETHER OR UNDER WHAT CIRCUMSTANCES THE SPECIFIC PROVISIONS OF
 A NEGOTIATED AGREEMENT MAY BE SUPERSEDED BY THE PARTIES' INCONSISTENT
 ESTABLISHED PRACTICE.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN FLRA CASE NOS. 5-CA-37,
 5-CA-72 AND 5-CA-116 BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 15, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    EDWARD L. KOVEN, ESQUIRE
    GENERAL ATTORNEY
    OFFICE OF GENERAL COUNSEL
    DEPARTMENT OF HEALTH, EDUCATION AND WELFARE
    REGION V
    18TH FLOOR
    300 SOUTH WACKER DRIVE
    CHICAGO, ILLINOIS 60606
                            FOR THE RESPONDENT
 
    BRENDA M. ROBINSON, ESQUIRE
    REGIONAL ATTORNEY
    FEDERAL LABOR RELATIONS AUTHORITY
    ROOM 1638
    DIRKSEN FEDERAL BUILDING
    219 SOUTH DEARBORN STREET
    CHICAGO, ILLINOIS 60604
                          FOR THE GENERAL COUNSEL
 
    BEFORE:  WILLIAM B. DEVANEY
    ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
 SECTION 7101, ET SEQ., /1/ AND THE INTERIM RULES AND REGULATIONS ISSUED
 THEREUNDER, FED. REG., VOL. 44, NO. 147, JULY 30, 1979, 5 C.F.R. CHAPTER
 XIV, PART 2411, ET SEQ.
 
    THE CHARGE IN CASE NO. 5-CA-37 WAS FILED ON MARCH 21, 1979;  THE
 CHARGE IN CASE NO. 5-CA-72 -AS FILED ON APRIL 17, 1979;  AND THE CHARGE
 IN CASE NO. 5-CA-116 WAS FILED ON MAY 22, 1979.  ON AUGUST 31, 1979, THE
 REGIONAL DIRECTOR ISSUED AN ORDER CONSOLIDATING CASES, COMPLAINT, AND
 NOTICE OF HEARING TO COMMENCE ON SEPTEMBER 25, 1979.  RESPONDENT FILED A
 TIMELY ANSWER ON SEPTEMBER 17, 1979, AND, PURSUANT TO THE NOTICE OF
 HEARING, A HEARING WAS DULY HELD BEFORE THE UNDERSIGNED ON SEPTEMBER 25
 AND 26, 1979, IN CHICAGO, ILLINOIS.  ON SEPTEMBER 26, 1976, GENERAL
 COUNSEL FILED A MOTION TO AMEND CONSOLIDATED COMPLAINT, RECEIVED BY THIS
 OFFICE ON OCTOBER 2, 1979;  ON OCTOBER 3, 1979, RESPONDENT STATED IT HAD
 NO OBJECTION TO GENERAL COUNSEL'S MOTION TO AMEND AND MOVED TO AMEND ITS
 ANSWER TO DENY THE AMENDED ALLEGATION.  BOTH MOTIONS ARE HEREBY GRANTED.
 
    ALL PARTIES WERE REPRESENTED BY ABLE COUNSEL, WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO
 INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED.  AT THE CLOSE OF THE
 HEARING, OCTOBER 25, 1979, WAS FIXED AS THE MAILING DATE FOR
 POST-HEARING BRIEFS AND COUNSEL FOR EACH PARTY TIMELY MAILED EXCELLENT
 BRIEFS WHICH HAVE BEEN CAREFULLY CONSIDERED.  UPON THE BASIS OF THE
 ENTIRE RECORD, /2/ INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
 DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND ORDER:
 
                                BACKGROUND
 
    THE THREE CASES, CONSOLIDATED BY THE REGIONAL DIRECTOR, INVOLVE A
 COMMON QUESTION OF LAW AND FACT.  ARTICLE XXII, SECTION E, OF THE
 COLLECTIVE BARGAINING AGREEMENT OF THE PARTIES OF JUNE 6, 1975 (G.C.
 EXH. 8) PROVIDED FOR ABSENCES FROM DUTY FOR A REASONABLE PERIOD OF TIME
 BY STEWARDS AND/OR LOCAL UNION OFFICERS UNDER STATED CONDITIONS.
 
    THE AGREEMENT SPECIFICALLY CONDITIONS SUCH ABSENCES ON RELEASE BY THE
 IMMEDIATE SUPERVISOR;  MR. MARTIN J. KOZAK, PRESENTLY AN ASSISTANT
 REGIONAL AUDIT DIRECTOR, IN 1975 WAS AN ASSISTANT REGIONAL HEALTH
 ADMINISTRATOR AND A MEMBER OF RESPONDENT'S NEGOTIATING TEAM WHICH
 NEGOTIATED THE 1975 AGREEMENT, TESTIFIED THAT, AS A MEMBER OF THE
 MANAGEMENT NEGOTIATING TEAM, IT WAS HIS UNDERSTANDING OF ARTICLE XXII
 THAT UNION REPRESENTATIVES WERE REQUIRED TO OBTAIN ADVANCE APPROVAL FOR
 RELEASE;  AND THE RECORD OTHERWISE SHOWS THAT THE PARTIES SO CONSTRUED
 AND APPLIED ARTICLE XXII (SEE, FOR EXAMPLE, HEW EXHS, 4, 5, 6, 8, 10,
 13).  ALTHOUGH THE RECORD WOULD FULLY SUPPORT A FINDING THAT ARTICLE
 XXII REQUIRED ADVANCE APPROVAL FOR RELEASE OF UNION OFFICERS AND
 STEWARDS, INASMUCH AS THE GENERAL COUNSEL STATED THAT THERE WAS NOT
 DISAGREEMENT AS TO THE LANGUAGE OF ARTICLE XXII, I SIMPLY ACCEPT FOR THE
 PURPOSES OF THIS PROCEEDING, RESPONDENT'S REPRESENTATION THAT THE 1975
 AGREEMENT DID REQUIRE THAT UNION REPRESENTATIVES OBTAIN ADVANCE APPROVAL
 FOR APPROPRIATE UNION ACTIVITIES DURING WORKING HOURS.  /3/ THE GENERAL
 COUNSEL FULLY ACCEPTED THIS PREMISE, ASSUMED THAT THE AGREEMENT REQUIRED
 ADVANCE APPROVAL FOR RELEASE OF UNION OFFICERS AND STEWARDS FOR UNION
 ACTIVITIES DURING WORKING HOURS, AND THE THEORY OF THE ALLEGED
 VIOLATIONS IS THAT A PRACTICE AND/OR SIDE AGREEMENT WHICH DIFFERED FROM
 ARTICLE XXII AS TO THE MANNER OF REPORTING ABSENCES, AT LEAST, BY THE
 PRESIDENT OF LOCAL 3400, HAD RIPENED INTO A CONDITION OF EMPLOYMENT
 WHICH RESPONDENT COULD NOT UNILATERALLY CHANGE EVEN THOUGH THE "CHANGE"
 WAS TO INSIST UPON COMPLIANCE WITH THE PARTIES' NEGOTIATED AGREEMENT.
 
    DURING 1978, THE PARTIES NEGOTIATED A NEW AGREEMENT, SIGNED BY BOTH
 THE UNION AND MANAGEMENT NEGOTIATORS ON JUNE 28, 1978.  THE NEW
 PROVISION, AS TO ADVANCE APPROVAL OF ABSENCES FOR UNION ACTIVITY, WHILE
 IN MANY RESPECTS WAS SUBSTANTIALLY UNCHANGED FROM THE 1975 PROVISION,
 WAS, TO THE EXTENT THAT IT DIFFERED IN SUBSTANCE, MORE STRINGENT AND
 MORE SPECIFIC THAN THE 1975 PROVISION HAD BEEN (SEE, HEW EXH. 34).
 RENEGOTIATED ARTICLE XXII DID NOT CONTAIN ANY EXCEPTION, OR SPECIAL
 PROCEDURE, FOR THE PRESIDENT OF LOCAL 3400.  HOWEVER, THE JUNE 28, 1978,
 AGREEMENT WAS NOT RATIFIED BY THE MEMBERSHIP OF LOCAL 3400, BUT WAS
 REJECTED ON OCTOBER 16, 1978.
 
    THERE IS NO DISPUTE THAT ON MARCH 12, 1976, RESPONDENT MADE A SPECIAL
 ARRANGEMENT FOR THE THEN PRESIDENT OF LOCAL 3400, MS. ROSE MARY SMITH.
 THIS ARRANGEMENT WAS MADE TO ACCOMODATE FOR THE FACT THAT MS. SMITH
 WORKED IN A BUILDING SEVERAL BLOCKS FROM THE BUILDING IN WHICH THE GREAT
 BULK OF THE UNIT EMPLOYEES WERE LOCATED.  PURSUANT TO THIS ARRANGEMENT,
 MS. SMITH WAS AUTHORIZED BLANKET RELEASE TIME EACH MONDAY FROM THE ONSET
 OF WORK UNTIL 12:15 P.M. AT THE UNION OFFICE AND SHE WAS TO REQUEST
 RELEASE TIME, IN ADVANCE, FOR OTHER UNION ACTIVITIES (HEW EXH. 10).  A
 FORM FOR REQUEST FOR RELEASE, SUBSEQUENTLY DEVELOPED BY THE LABOR
 RELATIONS POLICY COMMITTEE, WAS AGREED TO BY THE UNION (HEW EXH. 8).
 MS. SMITH WAS SUCCEEDED AS PRESIDENT, IN MARCH 1977, BY MR.  WILLIAM
 LOFTIS.  MR. LOFTIS WAS LOCATED IN THE SAME BUILDING IN WHICH THE GREAT
 MAJORITY OF UNIT EMPLOYEES WERE LOCATED.  THE ARRANGEMENT MADE FOR MS.
 SMITH WAS NEVER APPLIED TO MR. LOFTIS.  THE PRECISE METHOD MR. LOFTIS
 FOLLOWED TO OBTAIN OFFICIAL TIME FOR UNION ACTIVITIES FROM MARCH 1977,
 UNTIL APRIL OR MAY 1976, WAS NOT SHOWN.
 
    THERE IS NO DISPUTE THAT IN APRIL OR MAY 1978, THE THEN ASSISTANT
 REGIONAL COMMISSIONER FOR SUPPLEMENTAL SECURITY INCOME, MS. LEZA GOODEN,
 AGREED TO A PROCEDURE WHEREBY MR. LOFTIS WOULD USE THE REQUEST FOR
 RELEASE FORM (HEW EXH. 8) TO REQUEST ADVANCE APPROVAL OF TIME FOR
 MEETINGS WITH MANAGEMENT /4/ AND WOULD ACCOUNT FOR ALL OTHER TIME SPENT
 ON UNION ACTIVITIES /5/ ON A WEEKLY BASIS ON A FORM DESIGNED BY MR.
 LOFTIS AND APPROVED BY MS. GOODEN (G.C. EXH. 2). THERE IS NO DISPUTE
 THAT:  (A) MS. GOODEN DID NOT HAVE AUTHORITY TO BARGAIN WITH THE UNION;
 (B) THIS WAS KNOWN BY MR. LOFTIS (SEE, HEW EXHIBITS 2 AND 4);  AND (C)
 THE ARRANGEMENT AGREED TO BY MS. GOODEN AND MR. LOFTIS WAS NOT
 COMMUNICATED TO THE DIRECTOR, OR TO THE LABOR RELATIONS OFFICER, WHO HAD
 BEEN DESIGNATED AS THE SPOKESPERSON FOR THE DIRECTOR IN MATTERS
 APPROPRIATE TO COLLECTIVE BARGAINING.  NEVERTHELESS, MR. LOFTIS FOLLOWED
 THIS PROCEDURE FROM APRIL OR MAY 1978, WHEN IT WAS AGREED TO BY MS.
 GOODEN.
 
    MS. GOODEN LEFT THE CHICAGO REGION ON, OR ABOUT, SEPTEMBER 3, 1978,
 AND BECAME ASSISTANT REGIONAL COMMISSIONER-FAMILY ASSISTANCE, IN DENVER,
 COLORADO.  SHE WAS SUCCEEDED INITIALLY BY MS. JO ELLEN LUSCOMBE, WHO
 SERVED AS ACTING ASSISTANT REGIONAL COMMISSIONER-SS1, FROM SEPTEMBER 3,
 1978, UNTIL OCTOBER 22, 1978, WHEN MS. RUTH J. RUBY BECAME ASSISTANT
 REGIONAL COMMISSIONER.  MS. LUSCOMBE ACCEPTED MR. LOFTIS' PRACTICE.  IN
 AUGUST 1978, WHEN MS. RUBY WAS DIRECTOR OF THE DIVISION OF MANAGEMENT
 AND ADMINISTRATION, IN CONNECTION WITH RELEASE TIME FOR A STEWARD, SHE
 ADVISED MR. LOFTIS THAT ADVANCE APPROVAL WAS NECESSARY FOR ALL UNION
 ACTIVITIES.  SHORTLY AFTER SHE BECAME ASSISTANT REGIONAL COMMISSIONER,
 SS1, MS. RUBY TOLD MR. LOFTIS THAT ADVANCE APPROVAL WAS REQUIRED BY
 ARTICLE XXII BUT SHE AGREED TO HONOR HIS AGREEMENT WITH MS. GOODEN UNTIL
 SUCH TIME AS "THE CONTRACT WAS RENEGOTIATED." BY THE END OF NOVEMBER
 1978, UNION HAD INFORMED RESPONDENT THAT ONE OF THE ARTICLES TO BE
 REOPENED FOR NEGOTIATION WAS ARTICLE XXII.
 
    IN JANUARY 1979, MS. RUBY CALLED MR. LOFTIS TO HER OFFICE AND
 INFORMED HIM THAT SHE WAS GOING TO INVOKE HER INTERPRETATION OF ARTICLE
 XXII AND THAT HE WOULD HAVE TO REQUEST OFFICIAL TIME IN ADVANCE FOR ALL
 UNION ACTIVITY.  MR. LOFTIS OBJECTED AND INFORMED MS. RUBY THAT HE GOING
 TO TAKE THE MATTER TO THE DIRECTOR, MR. CHRISTOPHER COHEN.  BY LETTER
 DATED JANUARY 11, 1979, MR. LOFTIS REQUESTED A MEETING WITH MR. COHEN
 (G.C. EXH. 9);  AND A MEETING WAS HELD ON FEBRUARY 6, 1979.  PRESENT FOR
 THE UNION WERE:  MR. AL KAPLAN;  NATIONAL VICE PRESIDENT OF AFGE, MR.
 PHIL PAGE, VICE PRESIDENT OF LOCAL 3400, MS. JANET WILLIAMS, STEWARD;
 AND MR. LOFTIS.  PRESENT FOR RESPONDENT WERE:  MR. GEORGE BARTAL,
 DIRECTOR OF THE REGIONAL ADMINISTRATIVE SUPPORT STAFF;  MS. CYNTHIA
 SOLTES, LABOR RELATIONS OFFICER;  AND MR. COHEN.  MR. LOFTIS TESTIFIED
 THAT THE ISSUE OF RELEASE TIME WAS DISCUSSED;  THAT HE GAVE MR. COHEN
 THE UNION'S PROPOSAL;  AND THAT HE STATED WHY UNION FELT A NEED FOR HIM,
 MR. COHEN, TO LOOK AT THE RELEASE TIME FORM.  MR. LOFTIS FURTHER
 TESTIFIED THAT MR.  COHEN REFERRED THE MATTER BACK TO MS. SOLTES AND
 THAT MS. SOLTES SAID SHE WOULD "LOOK INTO IT AND GET BACK TO ME." (TR.
 147).
 
    ON FEBRUARY 8, 1979, MS. SOLTES ADVISED MR. LOFTIS THAT MANAGEMENT
 SUPPORTED MR. RUBY'S POSITION THAT ADVANCE APPROVAL FOR APPROPRIATE
 UNION ACTIVITIES WAS REQUIRED (G.C. EXH. 16).  THIS POSITION WAS
 REITERATED BY MR. COHEN IN A MEMORANDUM TO MR. LOFTIS, DATED MARCH 13,
 1979 (G.C. EXH. 10).  BY MEMORANDUM DATED MARCH 19, 1979, MS. RUBY
 FORMALLY REQUESTED MR.  LOFTIS TO ADHERE TO AN ATTACHED FORM /6/ TO BE
 USED TO REQUEST "ALL OFFICIAL TIME DESIRED FOR UNION ACTIVITIES." (G.C.
 EXH. 15).  BY MEMORANDUM TO MS. RUBY, DATED MARCH 21, 1979, MR. LOFTIS
 REFUSED TO COMPLY (G.C. EXH. 13).  ON MARCH 27, 1979, MS. RUBY ADVISED
 MR.  LOFTIS, IN WRITING, THAT HIS FAILURE TO COMPLY WITH THE REQUIREMENT
 TO REQUEST ADVANCE APPROVAL FOR ALL APPROPRIATE UNION ACTIVITIES DURING
 WORKING HOURS WOULD RESULT IN AN ADVERSE ACTION BEING TAKEN (G.C. EXH.
 11).  ON APRIL 2, 1979, MR. LOFTIS REPLIED, IN WRITING, THAT HIS
 POSITION WAS UNCHANGED AND THAT HE WOULD NOT COMPLY (G.C. EXH. 17).  A
 PROPOSAL TO REPRIMAND ISSUED ON APRIL 10, 1979 (G.C. EXH. 12) AND A
 REPRIMAND WAS SUBSEQUENTLY ISSUED.
 
    THERE IS NO DISPUTE THAT ON MARCH 23, 1979, MR. BILL WADDAMS, A NEWLY
 EMPLOYED /7/ SECOND LINE SUPERVISOR IN THE OFFICE OF EDUCATION, SENT A
 MEMORANDUM TO THE NEWLY EMPLOYED /8/ FIRST LINE SUPERVISOR, MS. MARY
 DONNELL, OF STEWARD NARVELLA KENNEDY, INQUIRING HOW THE PROCEDURE
 REGARDING MS. KENNEDY'S REQUESTING ADVANCE APPROVAL FOR UNION ACTIVITIES
 WAS WORKING OUT (HEW EXH. 18).  BY MEMORANDUM DATED MARCH 23, 1979, MS.
 DONNELL REMINDED MS. KENNEDY THAT SHE MUST REQUEST ADVANCE APPROVAL FOR
 UNION ACTIVITY DURING WORKING HOURS (G.C. EXH. 5).  MS.  KENNEDY
 OBJECTED BY MEMORANDUM DATED MARCH 29, 1979 (G.C. EXH. 6);  BUT MR.
 WADDAMS ADVISED MS.  KENNEDY BY MEMORANDUM ALSO DATED MARCH 29, 1979,
 THAT SHE MUST COMPLY (HEW EXH. 19).  HOWEVER, FOLLOWING A CONFERENCE
 WITH MS. KENNEDY, MR. WADDAMS ON APRIL 3, 1979, AGREED THAT MS. KENNEDY
 COULD FOLLOW THE PROCEDURE USED BY MR. LOFTIS, I.E., REQUEST APPROVAL IN
 ADVANCE FOR MEETINGS WITH MANAGEMENT AND REPORT ALL OTHER TIME SPENT ON
 UNION MATTERS ON A WEEKLY BASIS (HEW EXH. 21).  ON APRIL 30, 1979, MR.
 THOMAS PESTKA, MR. WADDAMS' IMMEDIATE SUPERVISOR, RECEIVED WEEKLY
 SUMMARIES SUBMITTED BY MS. KENNEDY FOR THE WEEKS ENDING APRIL 20 AND 27
 (HEW EXH. 20), AND ON MAY 7, 1979, MR. PESTKA SENT MR. WADDAMS A
 MEMORANDUM ADVISING HIM THAT SUCH PROCEDURE, I.E., WEEKLY SUMMARIES FOR
 "ALL OTHER TIME" WAS INCONSISTENT WITH ARTICLE XXII AND ORDERED HIM TO
 RESCIND THE ARRANGEMENT (HEW EXH. 22), WHICH MR. WADDAMS DID BY
 MEMORANDUM DATED MAY 10, 1979 (G.C. EXH. 7).
 
                                THE ISSUES
 
    A.  DID RESPONDENT VIOLATE SECTIONS 16(A)(1), (2) AND (5) OF THE
 STATUTE, 5 U.S.C. 7116(A)(1), (2) AND (5), BY VIRTUE OF THE ALLEGED
 UNILATERAL ABROGATION OF THE AGREEMENT, AND/OR PRACTICE, AS TO MR.
 LOFTIS OF HIS REPORTING "OTHER TIME" SPENT ON UNION ACTIVITIES ON A
 WEEKLY BASIS ON, OR ABOUT, MARCH 13, 1979?  (PARAGRAPHS V(A)), VII AND
 IX OF THE COMPLAINT).
 
    B.  DID RESPONDENT VIOLATE SECTIONS 16(A)(1), (2) AND (5) OF THE
 STATUTE BY VIRTUE OF THE NOTICE OF PROPOSED REPRIMAND ON, OR ABOUT,
 APRIL 10, 1979, OF MR. LOFTIS FOR HIS REFUSAL TO COMPLY WITH
 RESPONDENT'S INSTRUCTIONS TO REQUEST PRIOR APPROVAL FOR ALL ABSENCES FOR
 UNION ACTIVITIES ON DUTY TIME?  (PARAGRAPH VI AND IX, AS AMENDED, OF THE
 COMPLAINT).
 
    C.  DID RESPONDENT VIOLATE SECTIONS 16(A)(1), (2) AND (5) BY VIRTUE
 OF ITS ABROGATION OF THE AGREEMENT, AND/OR ARRANGEMENT, AS TO MS.
 KENNEDY OF HER REPORTING "OTHER TIME" SPENT ON UNION ACTIVITIES ON A
 WEEKLY BASIS ON, OR ABOUT, MAY 10, 1979?  (PARAGRAPHS V(B), VII AND IX
 OF THE COMPLAINT).
 
                                CONCLUSIONS
 
    1.  TERMINATION OF MR. LOFTIS' REPORTING PROCEDURE
 
    THE "AGREEMENT" BETWEEN MS. GOODEN AND MR. LOFTIS WAS THE FORM
 PREPARED BY MR. LOFTIS (G.C. EXH. 2), WHICH REPORTED "TIME SPENT ON
 LABOR-MANAGEMENT MATTERS FOR ACTIVITIES OTHER THAN 'REQUEST FOR RELEASE
 TIME'" /9/ WEEKLY (THE AMOUNT OF TIME SPENT WAS SHOWN FOR EACH DAY),
 AND, OF COURSE, MS. GOODEN'S ACCEPTANCE OF THE REPORTING PROCEDURE
 REFLECTED THEREBY.  AS NOTED ABOVE, MR. LOFTIS, FOLLOWING MS. GOODEN'S
 ACCEPTANCE OF HIS FORM:  (A) REQUESTED ADVANCE APPROVAL FOR MANAGEMENT
 MEETINGS ON HEW EXHIBIT 8 (PURSUANT TO ARTICLE XXII, SECTION E,
 SUBSECTION 3 A-E);  AND (B) REPORTED ALL OTHER TIME (ARTICLE XXII,
 SECTION E, SUBSECTION F), AFTER THE FACT, WEEKLY ON GENERAL COUNSEL
 EXHIBIT 2.  HIS PREDECESSOR AS PRESIDENT OF LOCAL 3400, MS. SMITH, HAD
 HAD A QUITE DIFFERENT ARRANGEMENT WHEREBY SHE HAD BLANKET, ADVANCE
 AUTHORITY FOR ABSENCE FOR UNION ACTIVITY EACH MONDAY FROM THE BEGINNING
 OF WORK UNTIL 12:15, AS TO WHICH TIME SHE MADE NO REPORT;  AND SHE
 REQUESTED ADVANCE APPROVAL FOR OFFICIAL TIME FOR ALL OTHER UNION
 ACTIVITY, INCLUDING, BUT NOT LIMITED TO, MANAGEMENT MEETINGS.  /10/
 
    THE ARRANGEMENT FOR MS. SMITH DIFFERED IN ANOTHER SIGNIFICANT RESPECT
 FROM THE ARRANGEMENT OBTAINED BY MR. LOFTIS, NAMELY, THAT THE SMITH
 ARRANGEMENT WAS FULLY APPROVED BY RESPONDENT, WHEREAS MS. GOODEN'S
 ACCEPTANCE OF MS. LOFTIS' REPORTING PROCEDURE WAS NOT.  MS. GOODEN
 DENIED ANY INTENT TO NEGOTIATE ANY CHANGE IN ARTICLE XXII AND THE RECORD
 SIMPLY SHOWS THAT SHE ACCEPTED MR. LOFTIS' PROCEDURE AS SATISFYING THE
 REQUIREMENTS OF ARTICLE XXII AS TO MR. LOFTIS.  TO BE SURE, THE EFFECT
 OF HER ACTION WAS TO GRANT MR. LOFTIS ADVANCE AUTHORITY FOR "OTHER"
 UNION ACTIVITY WHICH SHE MONITORED BY HIS WEEKLY REPORTS.  ARTICLE XXII
 DID PROVIDE THAT ".  . . LOCAL OFFICERS ARE AUTHORIZED TO BE ABSENT FROM
 THEIR DUTIES FOR A REASONABLE PERIOD OF TIME . . ." AND SHE DID " . . .
 ADVISE HIM OF THE CONDITION OF THE RELEASE . . . ", NAMELY THAT HE
 REPORT THE TIME SPENT ON SUCH "OTHER" ACTIVITIES EACH DAY ON A WEEKLY
 REPORT.  WHETHER MS.  GOODEN WAS CORRECT, THAT SUCH PROCEDURE SATISFIED
 THE REQUIREMENTS OF ARTICLE XXII, THERE IS NO BASIS IN THE RECORD TO
 CONCLUDE THAT SHE NEGOTIATED ANY CHANGE OF ARTICLE XXII.  TO THE
 CONTRARY, AS STATED ABOVE, SHE SIMPLY ACCEPTED MR. LOFTIS' PROCEDURE AS
 SATISFYING THE REQUIREMENTS OF ARTICLE XXII.  AS AN ASSISTANT REGIONAL
 COMMISSIONER, MS. GOODEN'S KNOWLEDGE OF, AND ACQUIESCENCE IN, MR.
 LOFTIS' REPORTING PROCEDURE CONSTITUTED NOTICE TO RESPONDENT OF THE
 PROCEDURE.  THE PRACTICE, AS TO MR. LOFTIS, CONTINUED FROM APRIL OR MAY
 1978, UNTIL MS. GOODEN LEFT IN SEPTEMBER 1978;  WAS KNOWN TO AND
 ACCEPTED BY THE ACTING ASSISTANT REGIONAL COMMISSIONER-SS1, MS.
 LUSCOMBE;  AND WAS KNOWN TO MS. GOODEN'S SUCCESSOR AS ASSISTANT REGIONAL
 COMMISSIONER, MS. RUBY, IN OCTOBER 1978, WHO AGREED TO HONOR MS. LOFTIS'
 AGREEMENT WITH MS. GOODEN UNTIL SUCH TIME AS "THE CONTRACT WAS
 RENEGOTIATED." LAX ENFORCEMENT, AND/OR DEPARTURES, BY INDIVIDUAL
 SUPERVISORS FROM THE PROVISIONS OF A COLLECTIVE BARGAINING AGREEMENT
 DOES NOT PRECLUDE MANAGEMENT ENFORCEMENT OF THE COLLECTIVE BARGAINING
 AGREEMENT.  AS A COROLLARY, PRACTICES OR PROCEDURES FOLLOWED BY
 INDIVIDUAL EMPLOYEES DO NOT, WITHOUT MORE, BECOME CONDITIONS OF
 EMPLOYMENT.  TO CONSTITUTE A CONDITION OF EMPLOYMENT CONTRARY TO A
 NEGOTIATED AGREEMENT, SUCH PRACTICE MUST:  (A) BE KNOWN TO MANAGEMENT;
 (B) RESPONSIBLE MANAGEMENT MUST KNOWINGLY ACQUIESCE;  AND (C) SUCH
 PRACTICE MUST CONTINUE FOR SOME SIGNIFICANT PERIOD OF TIME.  THE
 ALTERNATIVE WOULD BE CHAOS AND COLLECTIVE BARGAINING AGREEMENTS WOULD BE
 RENDERED MEANINGLESS IF EVERY DEPARTURE CREATED A NEW CONDITION OF
 EMPLOYMENT.  NEVERTHELESS UNDER CIRCUMSTANCES SET FORTH ABOVE, THE
 PRACTICE OF MR. LOFTIS REPORTING TIME SPENT ON "OTHER" UNION ACTIVITY ON
 A WEEKLY BASIS, CONTRARY TO THE REQUIREMENT OF ARTICLE XXII, HAD BECOME
 AN ESTABLISHED TERM AND CONDITION OF HIS EMPLOYMENT, INASMUCH AS THE
 PRACTICE WAS KNOWINGLY ACQUIESCED IN BY RESPONSIBLE MANAGEMENT OFFICIALS
 FOR A PERIOD OF MONTHS, WHICH RESPONDENT WAS NOT AT LIBERTY TO
 UNILATERALLY CHANGE.  U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
 SERVICE, NEW ORLEANS LOUISIANA, A/SLMR NO. 1034, 8 A/SLMR 497 (1978);
 INTERNAL REVENUE SERVICE, SOUTHEASTERN REGION, APPELLATE BRANCH OFFICE,
 NEW ORLEANS, LOUISIANA, A/SLMR NO. 1153, 8 A/SLMR 1254 (1978).
 
    HOWEVER, UNLIKE THE SITUATION PRESENTED IN THE NEW ORLEANS DISTRICT
 AND APPELLATE BRANCH OFFICE CASES, SUPRA, RESPONDENT DID NOT
 UNILATERALLY TERMINATE THE PRIVILEGE GRANTED MR. LOFTIS.  IN OCTOBER
 1978, MS. RUBY HAD TOLD MR. LOFTIS THAT ADVANCE APPROVAL FOR ALL UNION
 ACTIVITY WAS REQUIRED BY ARTICLE XXII BUT THAT SHE WOULD HONOR HIS
 AGREEMENT WITH MS. GOODEN UNTIL "THE CONTRACT WAS RENEGOTIATED." BY
 LETTER DATED NOVEMBER 27, 1978 (G.C. EXH. 20), THE UNION HAD INFORMED
 RESPONDENT THAT ONE OF THE ARTICLES TO BE REOPENED FOR NEGOTIATION WAS
 ARTICLE XXII.  IN JANUARY 1979, MS. RUBY INFORMED MR. LOFTIS THAT SHE
 WAS GOING TO INVOKE HER INTERPRETATION OF ARTICLE XXII AND THAT HE WOULD
 HAVE TO REQUEST OFFICIAL TIME IN ADVANCE FOR ALL UNION ACTIVITY.
 WHETHER MR. LOFTIS COULD HAVE INSISTED THAT NO CHANGE BE MADE IN HIS
 PROCEDURE OF REPORTING "OTHER" TIME SPENT ON UNION ACTIVITIES PENDING
 RENEGOTIATION OF THE CONTRACT, AS MS. RUBY HAD AGREED IN OCTOBER 1978,
 IS NOT AN ISSUE BEFORE ME, INASMUCH AS MR. LOFTIS ELECTED TO NEGOTIATE
 THE MATTER OF OFFICIAL TIME FOR THE UNION PRESIDENT SEPARATELY.  HIS
 REQUEST FOR A MEETING WITH MR. COHEN WAS DATED JANUARY 18, 1979 (G.C.
 EXH. 9) AND, PURSUANT THERETO, A MEETING WAS HELD ON FEBRUARY 6, 1979.
 MR. LOFTIS TESTIFIED THAT THE ISSUE OF RELEASE TIME WAS DISCUSSED;  THAT
 HE GAVE MR. COHEN THE UNION'S PROPOSAL;  AND THAT HE STATED WHY THE
 UNION FELT A NEED FOR HIM, MR. COHEN, TO LOOK AT THE RELEASE TIME FORM.
 MR. LOFTIS FURTHER TESTIFIED THAT MR. COHEN REFERRED THE MATTER BACK TO
 MS. SOLTES, THE LABOR RELATIONS OFFICER, AND THAT MS. SOLTES SAID SHE
 WOULD "LOOK INTO IT AND GET BACK TO ME." ON FEBRUARY 8, 1979, MS. SOLTES
 DID ADVISE MR. LOFTIS THAT MANAGEMENT SUPPORTED MS. RUBY'S POSITION THAT
 ADVANCE APPROVAL FOR APPROPRIATE UNION ACTIVITY WAS REQUIRED.  BY
 MEMORANDUM DATED FEBRUARY 9, 1979, ADDRESSED TO MR. COHEN, MR. LOFTIS
 AGAIN STATED HIS POSITION;  ACKNOWLEDGED MS. SOLTES' ORAL ADVICE OF
 FEBRUARY 8, 1973, THAT MANAGEMENT WOULD SUPPORT MS. RUBY'S POSITION;
 AND REQUESTED A WRITTEN RESPONSE TO THE UNION'S PROPOSAL (G.C. EXH. 16).
  MR. COHEN RESPONDED BY MEMORANDUM DATED MARCH 13, 1979 (G.C. EXH. 10).
 MR. COHEN'S MEMORANDUM STATED, IN PART, AS FOLLOWS:
 
    " . . . UNDER THE TERMS OF THE CONTRACT, THE UNION IS TO REQUEST
 OFFICIAL TIME IN ADVANCE
 
    AND TO UTILIZE REASONABLE AMOUNTS OF TIME FOR APPROPRIATE UNION
 ACTIVITIES.  MANAGEMENT ALSO
 
    HAS THE RIGHT AND OBLIGATION TO DETERMINE AND IMPOSE RESTRICTIONS
 UPON WHEN AND HOW MUCH TIME
 
    IS USED.  THE PURPOSE OF THIS MANAGEMENT RIGHT IS TO ENABLE
 MANAGEMENT TO PLAN AND UTILIZE
 
    MOST EFFICIENTLY THE STAFF RESOURCES AVAILABLE TO THEM IN CARRYING
 OUT THEIR
 
    FUNCTIONS.  MANAGEMENT HAS NO INTENTION OF INTERFERRING WITH YOUR
 RIGHT TO REQUEST AND USE
 
    OFFICIAL TIME IN ACCORDANCE WITH EXECUTIVE ORDER 11491 AS AMENDED AND
 5 USC 71.
 
    "IN CONCLUSION, I SUPPORT MS. RUBY'S AND MS. LUSCOMBE'S POSITION WITH
 RESPECT TO THEIR
 
    INTERPRETATION AND IMPLEMENTATION OF THE CONTRACT.
 
                         . . . " (G.C. EXH. 10).
 
    FOLLOWING RESPONDENT'S JANUARY 1979, NOTICE OF INTENT TO TERMINATE
 THE DEPARTURE FROM THE REQUIREMENT OF ARTICLE XXII FOR ADVANCE APPROVAL
 OF OFFICIAL TIME FOR ALL APPROPRIATE UNION ACTIVITIES, WHICH HAD BEEN
 ALLOWED AS TO MR. LOFTIS, MR. LOFTIS REQUESTED NEGOTIATIONS WITH
 RESPONDENT'S PRINCIPAL REGIONAL OFFICIAL, MR. COHEN.  A NEGOTIATING
 MEETING WAS HELD, AS REQUESTED, ON FEBRUARY 6, 1979, AT WHICH TIME THE
 ISSUE OF RELEASE TIME WAS DISCUSSED;  MR. LOFTIS PRESENTED THE UNION'S
 PROPOSAL, I.E. THAT HE REPORT "OTHER" UNION ACTIVITY ON G.C.  EXH. 2 AND
 REQUEST ADVANCE APPROVAL FOR MANAGEMENT MEETINGS ON HEW EXH. 8.  IN
 SHORT, MR. LOFTIS SOUGHT TO OBTAIN AN EXCEPTION FROM ARTICLE XXII FOR
 HIMSELF, AS PRESIDENT OF THE UNION.  HAVING GIVEN NOTICE THAT IT
 INTENDED TO TERMINATE THE DEPARTURE FROM ARTICLE XXII ALLOWED MR. LOFTIS
 AND HAVING MET WITH THE UNION AT ITS REQUEST TO NEGOTIATE, AS TO
 OFFICIAL TIME FOR THE UNION PRESIDENT, RESPONDENT WAS REQUIRED TO
 BARGAIN IN GOOD FAITH;  BUT RESPONDENT WAS NOT REQUIRED TO ACCEPT THE
 UNION'S PROPOSAL.  ARTICLE XXII, AS NEGOTIATED IN 1975, HAD NOT MADE ANY
 EXCEPTION FROM ITS TERMS FOR THE PRESIDENT OF THE UNION.  IN 1976,
 RESPONDENT HAD AUTHORIZED A SPECIAL ARRANGEMENT FOR THE THEN PRESIDENT
 OF THE UNION, MS. SMITH, TO ACCOMODATE FOR THE FACT THAT SHE WAS LOCATED
 IN A BUILDING SEVERAL BLOCKS FROM THE BUILDING IN WHICH THE GREAT BULK
 OF THE UNIT EMPLOYEES WERE LOCATED.  THIS CONDITION DID NOT PERTAIN TO
 MR. LOFTIS WHEN HE SUCCEEDED MS. SMITH AS PRESIDENT IN 1977, AND THE
 ARRANGEMENT MADE FOR MS. SMITH WAS NEVER EXTENDED TO MR. LOFTIS.  IN
 APRIL OR MAY 1978, MS.  GOODEN ACCEPTED MR. LOFTIS' PROPOSED FORM FOR
 THE REPORTING OF "OTHER" UNION ACTIVITY WEEKLY.  WHILE I HAVE FOUND THAT
 THE PROCEDURE ALLOWED BY MS. GOODEN HAD RIPENED INTO A CONDITION OF
 EMPLOYMENT AS TO MR. LOFTIS WHICH RESPONDENT COULD NOT UNILATERALLY
 CHANGE, RESPONDENT WAS NOT PRECLUDED FROM CHANGING THAT PRACTICE, AFTER
 NOTICE AND BARGAINING, AT THE UNION'S REQUEST, AND TO INSIST THAT MR.
 LOFTIS THEREAFTER COMPLY WITH THE TERMS OF ARTICLE XXII OF THE 1915
 AGREEMENT WHICH HAD BEEN CONTINUED IN EFFECT.  NOR IS THERE ANY BASIS
 FOR A FIND'NG THAT RESPONDENT DID NOT BARGAIN IN GOOD FAITH.  THE 1975
 AGREEMENT HAD REQUIRED ADVANCE APPROVAL FOR OFFICIAL TIME FOR ALL UNION
 ACTIVITY.  THE RENEGOTIATED 1978 AGREEMENT, ALTHOUGH NOT RATIFIED BY THE
 EMPLOYEES, HAD LIKEWISE REQUIRED ADVANCE APPROVAL FOR OFFICIAL TIME FOR
 ALL UNION ACTIVITY.  AS OPPOSED TO RESPONDENT'S INSISTANCE THAT MR.
 LOFTIS COMPLY WITH THE TERMS OF THE NEGOTIATED AGREEMENT, MR.  LOFTIS'
 POSITION WAS THAT, NOTWITHSTANDING THE PROVISIONS OF ARTICLE XXII, HE,
 AS PRESIDENT OF THE UNION, SHOULD HAVE COMPLETE CONTROL OF ALL "OTHER"
 TIME SPENT ON UNION ACTIVITIES AND SIMPLY REPORT THE TIME SPENT ON SUCH
 ACTIVITIES WEEKLY.  RESPONDENT'S INSISTANCE ON COMPLIANCE WITH THE TERMS
 OF THE NEGOTIATED AGREEMENT DOES NOT CONSTITUTE BAD FAITH.
 
    NOR IS THERE ANY PROBATIVE EVIDENCE THAT RESPONDENT TERMINATED THE
 REPORTING PROCEDURE, WHICH MS. GOODEN HAD ALLOWED MR. LOFTIS TO FOLLOW,
 IN VIOLATION OF SECTION 16(A)(2) OF THE STATUTE.  WHILE IT IS TRUE THAT
 MR. LOFTIS TESTIFIED THAT MR. THOMAS W. DUDSON, REGIONAL PERSONNEL
 OFFICER, TOLD HIM THAT MANAGEMENT WAS IRRITATED BECAUSE THE UNION HAD
 NOT RATIFIED THE 1978 CONTRACT, SUCH STATEMENT DOES NOT SUPPORT ANY
 INFERENCE THAT RESPONDENT TERMINATED MR. LOFTIS' REPORTING PROCEDURE
 BECAUSE OF IRRITATION OVER THE FAILURE OF THE MEMBERSHIP TO RATIFY THE
 CONTRACT.  INDEED, THE EVIDENCE IS TO THE CONTRARY.  THUS, IN AUGUST
 1978, MR. LOFTIS, IN CONNECTION WITH RELEASE TIME FOR A STEWARD, HAD
 BEEN TOLD BY MS. RUBY, WHO WAS THEN DIRECTOR OF THE DIVISION OF
 MANAGEMENT AND ADMINISTRATION, THAT ADVANCE APPROVAL WAS REQUIRED BY
 ARTICLE XXII FOR ALL UNION ACTIVITY.  BY MEMORANDUM DATED OCTOBER 17,
 1978, MR. LOFTIS HAD INFORMED RESPONDENT THAT LOCAL 3400 MEMBERSHIP HAD
 NOT RATIFIED THE NEW AGREEMENT AT A VOTE TAKEN ON OCTOBER 16, 1978 (G.C.
 EXH. 19).  MS.  RUBY BECAME ASSISTANT REGIONAL COMMISSIONER ON OCTOBER
 22, 1978, AND SOMETIME SHORTLY THEREAFTER TOLD MR. LOFTIS THAT ADVANCE
 APPROVAL WAS REQUIRED BY ARTICLE XXII FOR OFFICIAL TIME FOR ALL UNION
 ACTIVITY BUT THAT SHE WOULD HONOR HIS AGREEMENT WITH MS. GOODEN UNTIL
 "THE CONTRACT WAS RENEGOTIATED." CERTAINLY, MS. RUBY'S ACTION, AFTER THE
 MEMBERSHIP HAD FAILED TO RATIFY THE 1978 AGREEMENT, DID NOTHING TO
 ENCOURAGE OR DISCOURAGE MEMBERSHIP IN THE UNION BY DISCRIMINATION IN
 CONNECTION WITH HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF
 EMPLOYMENT.  ASSUMING THAT RESPONDENT WAS IRRITATED BY THE FAILURE OF
 THE MEMBERSHIP TO RATIFY THE 1978 AGREEMENT, THE RECORD SHOWS THAT,
 NOTWITHSTANDING SUCH IRRITATION, MS. RUBY AGREED TO HONOR MR. LOFTIS'
 AGREEMENT WITH MS. GOODEN.  MR.  LOFTIS TESTIFIED THAT WHEN MS. RUBY
 CALLED HIM TO HER OFFICE IN JANUARY 1979, /11/ SHE STATED:
 
    " . . . SHE FELT IT WAS GOING TO TAKE TOO LONG FOR RATIFICATION.  SHE
 DIDN'T KNOW WHEN IT
 
    WAS GOING TO HAPPEN.  SHE WAS GOING TO INVOKE HER INTERPRETATION OF
 THE CONTRACT, AND I ASKED
 
    HER WHAT DID THAT MEAN, AND SHE TOLD ME THAT MEANT THAT I WOULD
 REQUEST OFFICIAL TIME FOR ALL
 
    LABOR/MANAGEMENT RELATIONS ACTIVITIES IN ADVANCE." (TR. 142).  MR.
 LOFTIS STATED THAT HIS OBJECTIVE IN GOING TO MR. COHEN WAS THAT:
 
    " . . . WE COULD SORT OF TAKE THIS OUT ON THE SIDE AND TRY TO
 EXPEDITE NEGOTIATIONS OF
 
    OFFICIAL TIME, AT LEAST FOR ME . . . " (TR. 144).
 
    FROM THE RECORD, I CAN ONLY CONCLUDE THAT:  (A) MS. RUBY, BY
 MID-JANUARY 1979, HAD CONCLUDED THAT THERE WAS LITTLE PROSPECT FOR THE
 EARLY COMPLETION OF A NEW CONTRACT AND SHE WAS NOT WILLING TO PERMIT THE
 GOODEN ARRANGEMENT FOR MR. LOFTIS TO CONTINUE INDEFINITELY;  AND (B) MR.
 LOFTIS SAW AN OPPORTUNITY TO NEGOTIATE SEPARATELY THE QUESTION OF
 OFFICIAL TIME FOR THE UNION PRESIDENT.  AS MR. LOFTIS REQUESTED THE
 SEPARATE NEGOTIATION OF OFFICIAL TIME FOR THE UNION PRESIDENT (G.C. EXH.
 9) AND THE REQUESTED NEGOTIATIONS WERE HAD, I CANNOT, AND DO NOT, FIND
 ANY BASIS WHATEVER FOR A 16(A)(2) VIOLATION.  NO INDEPENDENT BASIS FOR A
 VIOLATION OF SECTION 16(A)(1) WAS SHOWN.
 
    ACCORDINGLY, HAVING FOUND THAT RESPONDENT DID NOT VIOLATE SECTIONS
 16(A)(1), (2), OR (5) OF THE STATUTE, 5 U.S.C. 7116(A)(1), (2), OR (5)
 BY VIRTUE OF THE TERMINATION, AFTER NOTICE AND BARGAINING, OF THE
 ARRANGEMENT WHEREBY MR. LOFTIS, CONTRARY TO ARTICLE XXII OF THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT, REPORTED "OTHER" TIME SPENT ON UNION
 ACTIVITIES ON A WEEKLY BASIS, PARAGRAPH V(A), VII AND IX OF THE
 COMPLAINT ARE HEREBY DISMISSED.
 
                        2.  REPRIMAND OF MR. LOFTIS
 
    FOLLOWING MR. COHEN'S MEMORANDUM OF MARCH 13, 1979, MS. RUBY BY
 MEMORANDUM DATED MARCH 19, 1979, FORMALLY REQUESTED MR. LOFTIS TO USE
 THE FORM ATTACHED TO REQUEST, IN ADVANCE, ALL OFFICIAL TIME DESIRED
 (G.C. EXH. 15).  BY MEMORANDUM DATED MARCH 21, 1979, MR.  LOFTIS
 REFUSED, STATING THAT HE WOULD CONTINUE HIS PRIOR PRACTICE (G.C. EXH.
 13).  BY MEMORANDUM DATED MARCH 27, 1979, MS. RUBY ADVISED MR. LOFTIS
 THAT THE PRIOR FORM (HEW EXH. 8) WAS SATISFACTORY;  THAT HE (LOFTIS) AND
 RON TEUBER MUST REQUEST OFFICIAL TIME IN ADVANCE FOR ALL APPROPRIATE
 UNION ACTIVITIES IN ACCORDANCE WITH THE CURRENT UNION CONTRACT;  AND
 THAT A FAILURE TO COMPLY WOULD RESULT IN AN ADVERSE ACTION BEING TAKEN
 (G.C. EXH. 11).  BY MEMORANDUM DATED APRIL 2, 1979, MR. LOFTIS AGAIN
 REFUSED TO COMPLY AND AGAIN ASSERTED THAT INTENDED TO FOLLOW HIS PAST
 PRACTICE OF REPORTING "OTHER" TIME WEEKLY (G.C. EXH. 17).  ON APRIL 3,
 1979, MR. LOFTIS TOLD MS. LUSCOMBE THAT HE WOULD NOT REQUEST TIME IN
 ADVANCE FOR ACTIVITIES OTHER THAN MANAGEMENT CALLED MEETINGS, I.E.,
 "OTHER" TIME, AND REJECTED MS. LUSCOMBE'S SUGGESTION THAT HE COMPLY
 "UNDER PROTEST." ACCORDINGLY, BY MEMORANDUM DATED APRIL 10, 1979 (G.C.
 EXH. 12), MR. LUSCOMBE ISSUED HER PROPOSAL TO REPRIMAND AND A REPRIMAND
 WAS SUBSEQUENTLY ISSUED.
 
    FOR THE REASONS SET FORTH IN PARAGRAPH 1, RESPONDENT DID NOT
 UNILATERALLY TERMINATE MR. LOFTIS' PROCEDURE OF REPORTING, AFTER THE
 FACT, TIME SPENT ON "OTHER" UNION ACTIVITIES, RATHER THAN OBTAINING
 ADVANCE APPROVAL FOR ALL TIME, INCLUDING "OTHER" TIME, SPENT ON UNION
 ACTIVITIES AS REQUIRED BY ARTICLE XXII, WHICH PROCEDURE HAD BEEN ALLOWED
 BY MS.  GOODEN.  TO THE CONTRARY, AS MORE FULLY STATED IN PARAGRAPH 1,
 RESPONDENT TERMINATED THE DEPARTURE FROM ARTICLE XXII ONLY AFTER NOTICE
 AND NEGOTIATIONS, REQUESTED BY MR. LOFTIS, AND TERMINATION OF SUCH
 PROCEDURE WAS NOT IN VIOLATION OF THE STATUTE.
 
    HAVING LAWFULLY TERMINATED THE PRACTICE, WHICH HAD BEEN ALLOWED MR.
 LOFTIS, RESPONDENT'S INSTRUCTION TO MR. LOFTIS THAT HE MUST COMPLY WITH
 THE TERMS OF THE NEGOTIATED AGREEMENT AND REQUEST APPROVAL OF OFFICIAL
 TIME IN ADVANCE FOR ALL UNION ACTIVITY, AND NOT MERELY MANAGEMENT CALLED
 MEETINGS, DID NOT VIOLATE SECTIONS 16(A)(1), (2), OR (5) OF THE STATUTE.
  FROM THE CHRONOLOGY SET FORTH ABOVE IT IS APPARENT THAT RESPONDENT
 EXERCISED THE UTMOST CONSIDERATION IN AFFORDING MR. LOFTIS EVERY
 OPPORTUNITY TO COMPLY WITH ITS INSTRUCTIONS AND THAT IT ISSUED THE
 PROPOSAL TO REPRIMAND ONLY AFTER MR. LOFTIS HAD CATEGORICALLY REFUSED TO
 COMPLY, INCLUDING THE SUGGESTION THAT HE COMPLY "UNDER PROTEST."
 CLEARLY, RESPONDENT EXERCISED RESTRAINT AND PATIENCE IN AN EFFORT TO
 AVOID THE NECESSITY FOR ANY ADVERSE ACTION AND RESPONDENT DID NOT
 VIOLATE SECTIONS 16(A)(1), (2), OR (5) OF THE STATUTE BY ITS PROPOSAL TO
 REPRIMAND OR BY ITS SUBSEQUENT REPRIMAND OF MR. LOFTIS.
 
    IN REACHING THIS CONCLUSION, THE VARIOUS ASSERTIONS OF GENERAL
 COUNSEL HAVE BEEN CAREFULLY CONSIDERED AND HAVE BEEN FOUND WHOLLY
 LACKING IN MERIT.  THUS, BY WAY OF EXAMPLE, GENERAL COUNSEL ARGUES THAT
 " . . . OTHER UNION STEWARDS, AND OFFICERS DID NOT ADHERE TO RULES
 ISSUED FOR REPORTING OFFICIAL TIME, THEY WERE NOT DISCIPLINED.  THE
 ACTIVITY COMPLAINED OF THE RESPONDENT'S SELECTIVE ENFORCEMENT OF ITS
 RULES . . . THAT THE RESPONDENT DISCRIMINATELY APPLIED ITS RULE TO
 LOFTIS, AND THEREBY CONVEYED THE MESSAGE TO HIS MEMBERSHIP THAT THEY
 CONTROLLED LOFTIS." (G.C. BRIEF P. 11).  RESPONDENT'S POLICY WITH
 RESPECT TO ARTICLE XXII AND ITS REQUIREMENT FOR ADVANCE APPROVAL OF
 OFFICIAL TIME FOR ALL UNION ACTIVITY HAD BEEN CONSISTENT FROM 1975 (SEE,
 FOR EXAMPLE, HEW EXHS. 4, 5, 6, 8, 10, 13, 18, 22);  EMPLOYEES,
 INCLUDING STEWARDS (HEW EXH. 17) COMPLIED (HEW EXH. 26-A THROUGH 26-F);
 AND THE REQUEST FOR RELEASE FORM (HEW EXH.  8) DEVELOPED BY THE LABOR
 RELATIONS POLICY COMMITTEE WAS AGREED TO BY THE UNION.  WHETHER EACH
 SUPERVISOR CONSISTENTLY REQUIRED THE REQUEST FOR RELEASE BE SUBMITTED IN
 WRITING, THE ONLY AUTHORIZED DEPARTURE FROM THE REQUIREMENT FOR ADVANCE
 APPROVAL OF OFFICIAL TIME FOR UNION ACTIVITIES WAS THE ARRANGEMENT FOR
 MS. SMITH WHEREBY SHE WAS GIVEN BLANKET AUTHORIZATION TO BE AT THE UNION
 OFFICE EACH MONDAY FROM THE BEGINNING OF WORK UNTIL 12:15 P.M.; HOWEVER
 MS. SMITH WAS REQUIRED TO, AND DID, REQUEST ADVANCE APPROVAL FOR
 OFFICIAL TIME FOR ALL OTHER UNION ACTIVITIES.  IN ADDITION, MS. GOODEN
 HAD ALLOWED MR. LOFTIS, FROM APRIL OR MAY 1978, TO REPORT TIME SPENT ON
 "OTHER" UNION ACTIVITIES WEEKLY.  NO UNION OFFICIAL OR EMPLOYEE OTHER
 THAN MR. LOFTIS WAS SHOWN TO HAVE BEEN ALLOWED OFFICIAL TIME FOR UNION
 ACTIVITIES WITHOUT ADVANCE APPROVAL, EXCEPT MS. NARVELLA KENNEDY,
 DISCUSSED HEREINAFTER, AS TO WHOM RESPONDENT PROMPTLY UPON NOTICE TOOK
 ACTION TO ACHIEVE COMPLIANCE WITH ARTICLE XXII.  FOLLOWING TERMINATION
 OF THE PRACTICE AS TO MR. LOFTIS, AFTER NOTICE AND NEGOTIATIONS,
 RESPONDENT, AS NOTED ABOVE, MADE EVERY REASONABLE EFFORT TO SECURE MR.
 LOFTIS' COMPLIANCE WITH ITS LAWFUL INSTRUCTION BUT MR. LOFTIS FLATLY
 REFUSED TO COMPLY.  THE RECORD DOES NOT SHOW SELECTIVE ENFORCEMENT OF
 RESPONDENT'S RULES NOR ANY DISCRIMINATION IN THE APP