Department of Defense, Department of the Navy, Polaris Missile Facility Atlantic, Charleston, South Carolina (Activity) and American Federation of Government Employees, Local 2298, AFL-CIO (Petitioner)



[ v06 p372 ]
06:0372(67)CA
The decision of the Authority follows:


 6 FLRA No. 67
 
 DEPARTMENT OF DEFENSE
 DEPARTMENT OF THE NAVY
 POLARIS MISSILE FACILITY ATLANTIC
 CHARLESTON, SOUTH CAROLINA
 Activity
 
 and
 
 LOCAL 2298, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 Petitioner
 
                                            Case No. 4-CA-435
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED 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 GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S DECISION
 AND ORDER, AND A SUPPORTING BRIEF, AND THE RESPONDENT FILED AN ANSWERING
 BRIEF THERETO.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT REGULATIONS
 STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
 JUDGE AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS
 ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE JUDGE'S RECOMMENDED
 DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY
 HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
 
    THE COMPLAINT ALLEGES THAT THE RESPONDENT, THE POLARIS MISSILE
 FACILITY ATLANTIC ("POMFLANT"), VIOLATED SECTION 7116(A)(5) AND (1) OF
 THE STATUTE BY UNILATERALLY CHANGING EXISTING CONDITIONS OF EMPLOYMENT
 WHEN IT REFUSED TO GRANT OFFICIAL TIME TO ITS EMPLOYEE, THE PRESIDENT OF
 UNION LOCAL 2298, LESTER BANEGAS, WHILE REPRESENTING EMPLOYEES OF THE
 NAVAL WEAPONS STATION (NWS), A SEPARATE ACTIVITY.  IT FURTHER ALLEGED
 THE STATUTE WAS VIOLATED BY FAILURE TO GIVE THE UNION NOTICE OR AN
 OPPORTUNITY TO BARGAIN CONCERNING THE ALLEGED CHANGE AND/OR IMPACT AND
 IMPLEMENTATION OF THIS CHANGE.  THE RESPONDENT DENIES THAT ITS ACTIONS
 CONSTITUTED AN UNFAIR LABOR PRACTICE.
 
    THE RECORD DISCLOSES THAT IN JANUARY OF 1977, THE RESPONDENT ISSUED A
 DIRECTIVE WITH THE ACQUIESCENCE OF THE UNION WHICH DEFINED OFFICIAL TIME
 AS "ALL TIME GRANTED EMPLOYEES BY MANAGEMENT TO PERFORM REPRESENTATIONAL
 FUNCTIONS FOR THIS ACTIVITIES (SIC) (POMFLANT'S) EMPLOYEES. . . . "
 LESTER BANEGAS, A POMFLANT EMPLOYEE, ATTENDED THE MONTHLY CAPTAIN'S
 MEETINGS AT NWS ON OFFICIAL TIME AS A UNION REPRESENTATIVE FOR NWS
 EMPLOYEES SUBSEQUENT TO THAT DIRECTIVE, FROM JUNE OF 1977 TO NOVEMBER OF
 1979.
 
    THE JUDGE FOUND DESPITE BANEGAS' ATTENDANCE ON OFFICIAL TIME ON
 BEHALF OF NWS EMPLOYEES, THAT NO PAST PRACTICE HAD BEEN ESTABLISHED TO
 GRANT OFFICIAL TIME TO THE RESPONDENT'S EMPLOYEES FOR THEIR
 REPRESENTATION OF EMPLOYEES OF SEPARATE EMPLOYER-ACTIVITIES, AS THERE
 WAS INSUFFICIENT EVIDENCE THAT THE RESPONDENT'S SUPERVISORS KNOWINGLY OR
 CONSISTENTLY ALLOWED LESTER BANEGAS OFFICIAL TIME TO REPRESENT EMPLOYEES
 OTHER THAN POMFLANT EMPLOYEES.  THE JUDGE BASED THAT DETERMINATION UPON
 CREDITED EVIDENCE THAT BEFORE BANEGAS ATTENDED THE CAPTAIN'S MEETINGS,
 HE TOLD RESPONDENT'S SUPERVISORS THAT HE WAS GOING "SOUTHSIDE," A COMMON
 TERM FOR THE CIVILIAN PERSONNEL OFFICE AT THE NWS BUILDING, AND
 RESPONDENT'S SUPERVISORS ASSUMED HE WAS GOING TO THE CIVILIAN PERSONNEL
 OFFICE AT NWS TO REPRESENT POMFLANT EMPLOYEES RATHER THAN NWS EMPLOYEES.
  THE JUDGE'S FINDING WAS ALSO BASED ON THE FACT THAT POMFLANT AND NWS
 SHARE A COMMON CIVILIAN PERSONNEL OFFICE LOCATED AT THE NWS FACILITY,
 THAT BANEGAS TOOK LEAVE WITHOUT PAY WHILE NEGOTIATING THE COLLECTIVE
 BARGAINING AGREEMENT FOR EMPLOYEES AT NWS, AND THAT WHENEVER HE WENT TO
 THE NWS CAPTAIN'S MEETINGS, BANEGAS MARKED A LABOR COST CODE ON HIS TIME
 CARD WHICH INDICATED HE WAS REPRESENTING POMFLANT EMPLOYEES.
 
    THE AUTHORITY AGREES WITH THE JUDGE THAT THE GENERAL COUNSEL FAILED
 TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT THE RESPONDENT'S
 SUPERVISORS KNOWINGLY AND CONSISTENTLY ALLOWED BANEGAS OFFICIAL TIME
 WHILE HE WAS REPRESENTING NWS EMPLOYEES AT THE CAPTAIN'S MEETINGS.
 HOWEVER, THE GENERAL COUNSEL IN ITS EXCEPTIONS ARGUES THAT A PAST
 PRACTICE HAS BEEN ESTABLISHED WHEN BANEGAS' PREDECESSOR, HAROLD DENTON,
 WAS UNION PRESIDENT, AND THAT SUCH PRACTICE CONTINUED AFTER THE JANUARY
 1977 DIRECTIVE AND WHILE BANEGAS WAS PRESIDENT DUE TO THE UNWITTING
 ACQUIESCENCE OF BANEGAS' SUPERVISORS.  THE UNCONTRADICTED FACTS IN THIS
 REGARD SHOW THAT WHILE DENTON WAS PRESIDENT OF UNION LOCAL 2298 FROM
 MARCH OF 1976 TO MARCH OF 1977, HE ATTENDED THE CAPTAIN'S MEETINGS AT
 NWS ON OFFICIAL TIME, WITH THE KNOWLEDGE OF HIS SUPERVISOR AT LEAST
 UNTIL JANUARY OF 1977.  DENTON NEVER FILLED OUT A LEAVE SLIP TO ATTEND
 THESE MEETINGS.  THE RESPONDENT'S DIRECTIVE IN JANUARY OF 1977 LIMITED
 THE USE OF OFFICIAL TIME TO REPRESENTATIONAL PURPOSES FOR POMFLANT
 EMPLOYEES ONLY.  UPON RECEIPT OF THIS NOTICE DENTON INITIALED AND SIGNED
 IT "O.K.", AND RETURNED IT TO THE RESPONDENT.  HOWEVER, THE EVIDENCE
 DOES NOT SUPPORT A FINDING THAT DENTON'S SUPERVISOR KNOWINGLY CONTINUED
 TO GRANT DENTON OFFICIAL TIME TO ATTEND ANY NWS MEETING AFTER THE
 JANUARY NOTICE.  BASED UPON THE FOREGOING, THE AUTHORITY CONCLUDES THAT
 THE GENERAL COUNSEL HAS NOT SHOWN BY A PREPONDERANCE OF THE EVIDENCE
 THAT A PRACTICE WAS ESTABLISHED WHILE DENTON WAS UNION PRESIDENT WHICH
 WAS CONTINUED THEREAFTER.  COMPARE DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, SOCIAL SECURITY ADMINISTRATION, OFFICE OF PROGRAM OPERATIONS
 AND FIELD OPERATIONS, SUTTER DISTRICT OFFICE, SAN FRANCISCO, CALIFORNIA,
 5 FLRA NO. 63(1981).  ACCORDINGLY, THE AUTHORITY SHALL ORDER THAT THE
 COMPLAINT BE DISMISSED.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 4-CA-435 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 5, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
   
 
 
 
 -------------------- ALJ DECISION FOLLOWS --------------------
 
  NONA J. JORDAN
 
                            FOR THE RESPONDENT
 
    JAMES R. PUHGER, ESQ.
 
                          FOR THE GENERAL COUNSEL
 
    LESTER BANEGAS
 
                          FOR THE CHARGING PARTY
 
    BEFORE:  RANDOLPH D. MASON
 
                         ADMINISTRATIVE LAW JUDGE
 
                            CASE NO.: 4-CA-435
 
                                 DECISION
 
    THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101, ET SEQ., AS A RESULT OF
 AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON JULY 29, 1980 BY THE
 REGIONAL DIRECTOR, REGION IV, FEDERAL LABOR RELATIONS AUTHORITY,
 ATLANTA, GEORGIA, AGAINST THE DEPARTMENT OF DEFENSE, DEPARTMENT OF THE
 NAVY, POLARIS MISSILE FACILITY ATLANTIC, CHARLESTON, SOUTH CAROLINA
 ("RESPONDENT").
 
    THE COMPLAINT ALLEGED THAT RESPONDENT UNILATERALLY CHANGED EXISTING
 CONDITIONS OF EMPLOYMENT BY REFUSING TO GRANT OFFICIAL TIME TO THE UNION
 PRESIDENT WHILE REPRESENTING EMPLOYEES OF ANOTHER BARGAINING UNIT
 LOCATED AT ANOTHER ACTIVITY.  THE COMPLAINT ALLEGES A VIOLATION OF
 SECTION 7116(A)(5) AND (1) OF THE STATUTE DUE TO THE RESPONDENT'S
 FAILURE TO GIVE THE UNION NOTICE OR AN OPPORTUNITY TO BARGAIN CONCERNING
 THIS ALLEGED CHANGE AND/OR THE IMPACT AND IMPLEMENTATION OF THIS CHANGE.
  SINCE NO VIOLATION OF SECTION 7131 OF THE STATUTE HAS BEEN ALLEGED AT
 ANY TIME DURING THIS PROCEEDING, THAT SECTION WILL NOT BE DISCUSSED
 HEREIN.  RESPONDENT DENIES THE ALLEGATION CONTAINED IN THE COMPLAINT.
 
    A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT
 CHARLESTON, SOUTH CAROLINA, ON OCTOBER 2, 1980.  ALL PARTIES WERE
 REPRESENTED AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT
 EVIDENCE, AND EXAMINE AND CROSS-EXAMINE WITNESSES.  RESPONDENT AND
 COUNSEL FOR THE GENERAL COUNSEL FILED BRIEFS WHICH HAVE BEEN DULY
 CONSIDERED.  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, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS OF LAW, AND RECOMMENDED ORDER:  /1/
 
                             FINDINGS OF FACT
 
    AT ALL TIMES MATERIAL HEREIN, LOCAL 2298, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, ("UNION") HAS BEEN THE EXCLUSIVE
 REPRESENTATIVE OF AN APPROPRIATE UNIT OF EMPLOYEES OF THE RESPONDENT.
 THE UNION IS ALSO THE EXCLUSIVE REPRESENTATIVE FOR TWO OTHER SEPARATE
 BARGAINING UNITS LOCATED AT THE NAVAL WEAPONS STATION ("NWS") AND THE
 NAVY EXCHANGE, RESPECTIVELY.  EACH OF THESE THREE BARGAINING UNITS HAS
 ITS OWN SEPARATE COLLECTIVE BARGAINING AGREEMENT.
 
    THE RESPONDENT ACTIVITY, ALSO KNOWN AS POMFLANT, IS A TENANT ACTIVITY
 OF THE NAVAL WEAPONS STATION AND THESE TWO COMMANDS ARE GEOGRAPHICALLY
 SITUATED ADJACENT TO EACH OTHER.  POMFLANT AND THE WEAPONS STATION ARE
 BOTH SERVICED BY A COMMON CIVILIAN PERSONNEL OFFICE WHICH IS LOCATED AT
 THE WEAPONS STATION AT A DISTANCE OF ABOUT SIX MILES FROM THE HIGH
 SECURITY WORK PLACE AT POMFLANT.  THE NAVY EXCHANGE IS SERVICED BY A
 SEPARATE CIVILIAN PERSONNEL OFFICE LOCATED ABOUT FIFTEEN MILES FROM
 POMFLANT AND THE NWS.
 
    DURING 1976, HAROLD DENTON, A POMFLANT EMPLOYEE, WAS THE UNION
 PRESIDENT.  DURING THAT SAME PERIOD, HE ATTENDED MONTHLY MEETINGS,
 CONDUCTED BY THE COMMANDING OFFICER AT NWS AT WHICH HE WOULD REPRESENT
 NWS EMPLOYEES.  PRIOR TO ATTENDING SUCH MEETINGS, DENTON NOTIFIED HIS
 SUPERVISOR OF THE DATE, TIME, AND PLACE OF THE MEETING AND WOULD MAKE A
 NOTATION TO THAT EFFECT ON THE SUPERVISOR'S CALENDAR.  IN ADDITION, ON
 THE DAY OF EACH MEETING, HE WOULD OBTAIN PERMISSION FROM HIS SUPERVISOR
 TO ATTEND THE MEETING ON OFFICIAL TIME.
 
    ON JANUARY 5, 1977, RESPONDENT SENT DENTON, THE UNION PRESIDENT, A
 PROPOSED DIRECTIVE CONCERNING THE USE OF OFFICIAL TIME FOR
 REPRESENTATIONAL PURPOSES.  RESPONDENT ASKED DENTON TO REVIEW THIS
 PROPOSAL AND TO COMMENT IN ACCORDANCE WITH THE COLLECTIVE BARGAINING
 AGREEMENT IN EFFECT AT THAT TIME.  AFTER REVIEWING THIS DIRECTIVE,
 DENTON TOLD RESPONDENT IN WRITING THAT THE DIRECTIVE WAS "OK".  THE
 DIRECTIVE, KNOWN AS POMFLANT NOTICE 12700, WAS ENTITLED "USE OF OFFICIAL
 TIME FOR EMPLOYEE REPRESENTATIONAL PURPOSES." "OFFICIAL TIME" WAS
 SPECIFICALLY DEFINED AS "ALL TIME GRANTED EMPLOYEES BY MANAGEMENT TO
 PERFORM REPRESENTATIONAL FUNCTIONS FOR THIS ACTIVITY'S (POMFLANT'S)
 EMPLOYEES WHILE OTHERWISE IN A DUTY STATUS WITHOUT CHARGE TO ANNUAL
 LEAVE OR LEAVE WITHOUT PAY STATUS." THE NOTICE ALSO STATED THAT IN
 AUTHORIZING SUCH OFFICIAL TIME, SUPERVISORS SHOULD SATISFY THEMSELVES
 THAT THE USE OF OFFICIAL TIME FOR REPRESENTATIONAL FUNCTIONS IS
 REASONABLE AND MUTUALLY BENEFICIAL TO MANAGEMENT AND "THIS ACTIVITY'S
 EMPLOYEES." SUPERVISORS WERE ALSO DIRECTED TO ENSURE THAT THE UNION
 REPRESENTATIVE RECORD THE SPECIFIC TYPE OF REPRESENTATIONAL DUTY, BY
 DESIGNATED CODE NUMBER, ON HIS DAILY TIME AND ATTENDANCE RECORD (LABOR
 COST CARD).  FIVE CATEGORIES OF REPRESENTATIONAL DUTIES WERE LISTED,
 INCLUDING ONE ENTITLED "MEETINGS WITH MANAGEMENT." THE LATTER CATEGORY
 WAS DEFINED AS FOLLOWS:
 
    LABOR COST ONLY FOR UNION OFFICERS, STEWARDS AND EMPLOYEES WITHIN THE
 UNIT, WHILE
 
    REPRESENTING THE UNIT, FOR THE PURPOSE OF IMPLEMENTING E.O.  11491,
 MEETINGS WITH MANAGEMENT,
 
    SERVING ON COMMITTEES, MERIT PROMOTION RATING PANELS, ETC.
 
    AFTER RECEIVING THE UNION'S ACQUIESCENCE, RESPONDENT ISSUED THE ABOVE
 DIRECTIVE ON JANUARY 26, 1977.
 
    DENTON RESIGNED AS PRESIDENT OF THE UNION IN MARCH OF 1977.
 THEREAFTER, IN JUNE OF THAT YEAR, LESTER BANEGAS BECAME THE UNION
 PRESIDENT.  BANEGAS WAS A MECHANIC WORKING AT THE POMFLANT HIGH SECURITY
 WORK AREA.  BETWEEN JUNE OF 1977 AND AUGUST OF 1978, BANEGAS ATTENDED
 APPROXIMATELY 60% OF THE MONTHLY CAPTAIN'S MEETINGS AT NWS AS A UNION
 REPRESENTATIVE FOR NWS EMPLOYEES.  HE DID NOT TAKE ANNUAL LEAVE OR LEAVE
 WITHOUT PAY WHILE ATTENDING THESE MEETINGS.  WHENEVER HE ATTENDED ONE OF
 THESE MEETINGS, HE WOULD INDICATE ON HIS DAILY TIME CARD THE LABOR COST
 CODE NUMBER SPECIFIED FOR "MEETINGS WITH MANAGEMENT" SET FORTH IN THE
 JANUARY 26, 1977, DIRECTIVE.
 
    IN AUGUST OF 1978 THE UNION AND THE NWS WERE PREPARING TO BEGIN
 NEGOTIATIONS FOR A COLLECTIVE BARGAINING AGREEMENT RELATING TO NWS
 EMPLOYEES.  ON AUGUST 26, 1978, BANEGAS ASKED HIS OWN EMPLOYER,
 POMFLANT, THAT HE BE GRANTED A CERTAIN AMOUNT OF OFFICIAL TIME FOR THE
 PURPOSE OF NEGOTIATING THE ABOVE AGREEMENT BETWEEN NWS AND AFGE LOCAL
 2298.  BY MEMORANDUM DATED SEPTEMBER 11, 1978, THE COMMANDING OFFICER OF
 POMFLANT DENIED BANEGAS'S REQUEST, BUT INDICATED THAT BANEGAS COULD TAKE
 LEAVE WITHOUT PAY OR ANNUAL LEAVE IF HE WISHED TO PARTICIPATE IN THE
 NEGOTIATIONS.  THE COMMANDING OFFICER REASONED, IN PART, AS FOLLOWS:
 
    THIS FACILITY IS IN NO WAY INVOLVED IN THE NEGOTIATIONS AT THE NAVAL
 WEAPONS STATION, NOR
 
    ARE ANY OF THE MEMBERS OF THE BARGAINING UNIT AT THIS FACILITY
 DIRECTLY AFFECTED BY THOSE
 
    NEGOTIATIONS.  YOUR ELECTION TO PARTICIPATE OR NOT PARTICIPATE IN THE
 NEGOTIATIONS AT THE
 
    NAVAL WEAPONS STATION IS A MATTER OF INTERNAL UNION BUSINESS AND NOT
 A MATTER OF OFFICIAL
 
    CONCERN TO THIS FACILITY.
 
    FOR APPROXIMATELY NINE MONTHS THEREAFTER, BANEGAS PARTICIPATED IN THE
 NEGOTIATIONS OF THE NWS COLLECTIVE BARGAINING AGREEMENT WHILE IN A LEAVE
 WITHOUT PAY STATUS.  HE WAS REIMBURSED BY THE UNION FOR HIS TIME.  ALSO,
 DURING THIS ENTIRE PERIOD OF NEGOTIATIONS, THE COMMANDING OFFICER OF NWS
 SUSPENDED HIS MONTHLY "CAPTAIN'S MEETINGS".  THE LATTER MONTHLY MEETINGS
 WERE NOT RESUMED UNTIL JUNE OR JULY OF 1979.
 
    AFTER THE MONTHLY CAPTAIN'S MEETINGS AT NWS WERE RESUMED IN 1979,
 BANEGAS CONTINUED TO ATTEND APPROXIMATELY 60% OF THESE MEETINGS UP TO,
 AND INCLUDING, THE MEETING HELD ON NOVEMBER 19, 1979.  BANEGAS'S
 SUPERVISOR DURING THE LATTER TIME PERIOD WAS ROBERT NEWBERRY.  DURING
 THAT PERIOD, BANEGAS NEVER TOLD NEWBERRY THAT HE WAS GOING TO THE
 MEETINGS IN QUESTION AND DID NOT REVEAL THAT HIS MISSION ON EACH
 OCCASION WAS TO REPRESENT THE EMPLOYEES OF NWS RATHER THAN POMFLANT.
 BEFORE LEAVING FOR EACH MEETING, BANEGAS WOULD MERELY TELL NEWBERRY THAT
 HE WAS GOING "SOUTHSIDE", A TERM USED FOR THE NAVAL WEAPONS STATION.
 SINCE THE CIVILIAN PERSONNEL OFFICE FOR POMFLANT EMPLOYEES WAS LOCATED
 AT NWS, NEWBERRY REASONABLY ASSUMED THAT BANEGAS WAS MERELY GOING
 "SOUTHSIDE" TO REPRESENT POMFLANT EMPLOYEES.  SINCE HE WAS THE UNION
 PRESIDENT, BANEGAS HAD FREQUENT DEALINGS WITH THAT CIVILIAN PERSONNEL
 OFFICE.  DURING THIS PERIOD, BANEGAS'S SECOND LEVEL SUPERVISOR WAS ALSO
 UNAWARE OF THE FACT THAT BANEGAS WAS ATTENDING THE NWS CAPTAIN'S
 MEETINGS.  IT IS ALSO NOTED IN THIS REGARD, THAT BANEGAS CONTINUED TO
 USE THE LABOR COST CODE ON HIS TIME CARD INDICATING THAT HE WAS IN A
 MEETING WITH MANAGEMENT CONCERNING POMFLANT EMPLOYEES.
 
    AT ALL TIMES MATERIAL HEREIN, WHENEVER BANEGAS PERFORMED
 REPRESENTATIONAL FUNCTIONS AT THE NAVY EXCHANGE BARGAINING UNIT, HE PUT
 IN A LEAVE SLIP REQUESTING ANNUAL OR LEAVE WITHOUT PAY.  SUCH REQUESTS
 WERE ROUTINELY GRANTED BY HIS FIRST OR SECOND LEVEL SUPERVISOR.
 
    ON NOVEMBER 20, 1979, RAYMOND MELLARD, WHO HAS BEEN BANEGAS'S SECOND
 LEVEL SUPERVISOR SINCE APRIL OF 1978, OVERHEARD BANEGAS SAY THAT HE HAD
 ATTENDED A MEETING ON NOVEMBER 19 WITH THE COMMANDING OFFICER OF THE
 NWS.  MELLARD CALLED THE RESPONDENT'S LABOR RELATIONS SPECIALIST TO ASK
 IF BANEGAS HAD ATTENDED SUCH A MEETING AND IF THERE HAD BEEN ANY CHANGE
 IN POMFLANT POLICY THAT WOULD ALLOW OFFICIAL TIME FOR SUCH A MEETING.
 MELLARD WAS TOLD THAT OFFICIAL TIME WOULD NOT BE APPROPRIATE.  THIS WAS
 THE FIRST TIME THAT MELLARD WAS AWARE THAT BANEGAS HAD ATTENDED THE
 MEETINGS IN QUESTION.  SINCE NEWBERRY WAS ON ANNUAL LEAVE DURING THIS
 TIME, MELLARD TOLD BANEGAS THAT HE WOULD HAVE TO BE CHARGED WITH ANNUAL
 LEAVE OR LEAVE WITHOUT PAY FOR THE TIME SPENT IN THAT MEETING.  SINCE
 THAT TIME, BANEGAS HAS SUBMITTED LEAVE SLIPS FOR ALL OF THE CAPTAIN'S
 MEETINGS AT NWS THAT HE HAS ATTENDED.
 
                            CONCLUSIONS OF LAW
 
    THE COMPLAINT ALLEGES THAT RESPONDENT'S POMFLANT ACTIVITY VIOLATED
 SECTION 7116(A)(5) AND (1) OF THE STATUTE BY UNILATERALLY CHANGING AN
 ESTABLISHED PAST PRACTICE WHEN IT REFUSED TO GRANT THE UNION PRESIDENT
 OFFICIAL TIME FOR REPRESENTING THE EMPLOYEES OF A DIFFERENT ACTIVITY,
 NWS, AT MONTHLY NWS CAPTAIN'S MEETINGS.  IT IS WELL SETTLED THAT THE USE
 OF OFFICIAL TIME FOR REPRESENTATIONAL ACTIVITIES OF AN EXCLUSIVE
 BARGAINING REPRESENTATIVE IS SUBJECT TO BARGAINING BY THE PARTIES.  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 TERMS OR CONDITIONS ESTABLISHED IN THIS MANNER MAY NOT BE
 ALTERED BY EITHER PARTY IN THE ABSENCE OF AGREEMENT OR IMPASSE FOLLOWING
 GOOD FAITH BARGAINING.  DEPARTMENT OF THE NAVY, NAVAL UNDERWATER SYSTEMS
 CENTER, NEWPORT NAVAL BASE, 3 FLRA NO. 64(1980).  A PRACTICE WILL BE
 CONSIDERED TO HAVE RIPENED INTO A TERM OR CONDITION OF EMPLOYMENT IF IT
 HAS BEEN CONSISTENTLY EXERCISED FOR AN EXTENDED PERIOD OF TIME WITH THE
 KNOWLEDGE AND CONSENT OF THE RESPONDENT'S SUPERVISORS.  ID.
 
    IT IS CLEAR THAT POMFLANT ESTABLISHED A POLICY WITH REGARD TO
 OFFICIAL TIME FOR UNION REPRESENTATIONAL PURPOSES IN ITS DIRECTIVE DATED
 JANUARY 26, 1977, AND THAT THIS POLICY WAS PUT INTO EFFECT WITH THE
 ACQUIESCENCE OF THE UNION.  THAT DIRECTIVE PROVIDED THAT OFFICIAL TIME
 WOULD ONLY BE GRANTED WHERE THE UNION OFFICIAL WAS REPRESENTING A
 POMFLANT EMPLOYEE.  THE GENERAL COUNSEL IS ESSENTIALLY ARGUING THAT
 AFTER THIS DIRECTIVE WAS ISSUED THE RESPONDENT CONTINUED TO GIVE THE
 UNION PRESIDENT, BANEGAS, OFFICIAL TIME WHEN HE WAS REPRESENTING THE NWS
 EMPLOYEES AT THE CAPTAIN'S MEETINGS AT NWS, AND THAT THE GRANTING OF
 OFFICIAL TIME FOR THAT PURPOSE BECAME A TERM OR CONDITION OF EMPLOYMENT
 NOTWITHSTANDING THE PREVIOUS DIRECTIVE.  I AM CONSTRAINED TO CONCLUDE
 AND HOLD THAT THE GENERAL COUNSEL HAS FAILED TO SUSTAIN HIS BURDEN OF
 PROOF IN THIS REGARD.
 
    AFTER BANEGAS WAS ELECTED UNION PRESIDENT IN JUNE OF 1977 HE ATTENDED
 ABOUT 60% OF THE MONTHLY CAPTAIN'S MEETINGS AT NWS UNTIL NOVEMBER OF
 1979.  THESE MEETINGS WERE NOT HELD FOR ABOUT NINE MONTHS FROM SEPTEMBER
 OF 1978 TO JUNE OF 1979.  BANEGAS TESTIFIED THAT PRIOR TO EACH ONE OF
 THESE MEETINGS HE SPECIFICALLY TOLD HIS SUPERVISOR THAT HE WAS GOING TO
 THE CAPTAIN'S MEETING AT NWS AND THAT HE WAS GRANTED OFFICIAL TIME BY
 HIS IMMEDIATE SUPERVISOR.  IN DIRECT CONTRAST TO THIS TESTIMONY,
 NEWBERRY, WHO WAS BANEGAS'S SUPERVISOR BETWEEN MARCH AND DECEMBER OF
 1979, CANDIDLY TESTIFIED THAT HE WAS COMPLETELY UNAWARE OF BANEGAS'S
 ATTENDANCE AT THOSE MEETINGS UNTIL AFTER NOVEMBER 19, 1979.  NEWBERRY
 STATED THAT BANEGAS FREQUENTLY ASKED PERMISSION FOR OFFICIAL TIME TO
 TRANSACT UNION BUSINESS AT THE NAVAL WEAPONS STATION, BUT NEWBERRY