13:0112(29)CA - SSA and AFGE -- 1983 FLRAdec CA



[ v13 p112 ]
13:0112(29)CA
The decision of the Authority follows:


 13 FLRA No. 29
 
 
 SOCIAL SECURITY ADMINISTRATION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-950
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 the unfair labor practices alleged in the complaint, and recommending
 that it be ordered to cease and desist therefrom and take certain
 affirmative action.  Thereafter, the Respondent filed exceptions to the
 Judge's Decision.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  /1/ Upon consideration of
 the Judge's Decision and the entire record, the Authority hereby adopts
 the Judge's findings, conclusions and Recommended Order, as modified
 herein.
 
    The complaint alleges, in essence, that the Respondent, Social
 Security Administration (SSA), violated section 7116(a)(1) and (5) of
 the Statute by unilaterally changing the past practice of allotting 100%
 official time to the National Council of SSA Field Operations Locals
 (the National Council) President for participating in labor-management
 relations activities by charging the President annual leave for
 preparing for negotiations in Washington, D.C.
 
    The Respondent contends that the essence of the dispute as to whether
 the National Council President should have been granted official time to
 prepare for negotiations in Washington, D.C. involves differing and
 arguable interpretations of a November 2, 1979 Memorandum of Agreement,
 and that the proper forum for resolution of such dispute was the
 arbitration process and not the unfair labor practice procedure.  In
 disagreement with the Respondent, the Authority finds that the
 Memorandum of Agreement did not pertain to the granting of official time
 to prepare for negotiations.  Rather, it established an interim
 grievance procedure covering the consolidated unit until such time as
 the master agreement was negotiated and provided that union
 representatives would be given a reasonable amount of official time to
 handle grievances under that procedure.  Thus, the Authority concludes
 that the dispute herein does not involve merely a differing and arguable
 interpretation of the Memorandum of Agreement.
 
    Further, the Authority concludes, in agreement with the Judge, that
 there was an established past practice whereby the National Council
 President was entitled to use 100% official time for labor-management
 relations activities, which included preparation for national
 consultation rights matters and negotiations.  According to the record,
 such practice was continued and reaffirmed on numerous occasions during
 the pendency of AFGE's petition for consolidation of units and following
 AFGE's certification as exclusive representative of the consolidated
 bargaining unit under the Statute.  In so concluding, the Authority
 notes particularly its earlier determination that "the use of official
 time to prepare for negotiations is a matter which is not excepted from
 the duty to bargain as 'internal business of the labor organization'
 under section 7131(b) of the Statute." American Federation of Government
 Employees, AFL-CIO, Local 1692 and Headquarters, 323rd Flying Training
 Wing (ATC), Mather Air Force Base, California, 3 FLRA 304, 308 (1980)
 (Emphasis in original.) /2/
 
    Accordingly, the Authority adopts the Judge's conclusion that the
 Respondent's refusal to grant the National Council President official
 time to prepare for national negotiations constituted a unilateral
 change in the past practice which entitled the National Council
 President to use 100% of his time for labor-management relations
 activities, and therefore violated section 7116(a)(1) and (5) of the
 Statute.  /3/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the Social Security Administration, Baltimore,
 Maryland shall:
 
    1.  Cease and desist from:
 
    (a) Unilaterally instituting changes with respect to the 100%
 allowance of official time to John O. Harris, President of the National
 Council of Social Security Field Operations Locals, American Federation
 of Government Employees, AFL-CIO, without providing prior notice to, and
 upon request, bargaining with the American Federation of Government
 Employees, AFL-CIO, the exclusive representative of its employees.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action:
 
    (a) Provide John H. Harris, President of the National Council of
 Social Security Field Operations Locals, American Federation of
 Government Employees, AFL-CIO, with official time for the performance of
 his representational duties during February 1980, and make him whole for
 any annual leave or leave without pay he may have utilized during that
 period to perform representational duties as a representative of the
 National Council of Social Security Field Operations Locals.
 
    (b) Post at its facilities in Baltimore, Maryland and St. Paul,
 Minnesota, where unit employees are located, copies of the attached
 Notice on forms to be furnished by the Federal Labor Relations
 Authority.  /4/ Upon receipt of such forms they shall be signed by the
 Commissioner, or his designee, and shall be posted and maintained for 60
 consecutive days thereafter, in conspicuous places, including bulletin
 boards and all other places where notices to employees are customarily
 posted.  Reasonable steps shall be taken to insure that such Notices are
 not altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director of Region III, 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.  
 
 Issued, Washington, D.C., September 27, 1983 
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                          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 unilaterally institute changes with respect to the 100%
 allowance of official time to John D. Harris, President of the National
 Council of Social Security Field Operations Locals, American Federation
 of Government Employees, AFL-CIO, without providing prior notice to, and
 upon request, bargaining with the American Federation of Government
 Employees, AFL-CIO, 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 the
 Statute.  WE WILL provide John D. Harris official time for the
 performance of his representational duties during February 1980 and make
 him whole for any annual leave or leave without pay he may have utilized
 during that period to perform representational duties as a
 representative of the National Council of Social Security Field
 Operations Locals.
                                       (Activity)
 
 Dated:  . . .  By:  (Signature) (Title) 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 its provisions,
 they may communicate directly with the Regional Director, Region III,
 Federal Labor Relations Authority, whose address is:  1111 18th Street,
 Room 700, P.O. Box 33758, Washington, D.C.  20033-0758 and whose
 telephone number is:  (202) 653-8507.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 3-CA-950
 
    Irving L. Becker and
    Francis X. Dippel
          For the Respondent
 
    Clara Williamson, Esq.
          For the General Counsel
 
    Before:  ELI NASH, JR.
         Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose pursuant to the Federal Service Labor-Management
 Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101, et seq., hereinafter
 called the Statute, as a result of an unfair labor practice charge filed
 on March 10, 1980.  The complaint, issued on August 15, 1980, alleged
 that the Social Security Administration, hereinafter called Respondent
 violated section 7116(a)(1) and (5) of the Statute by unilaterally and
 without bargaining with American Federation of Government Employees,
 AFL-CIO, /5/ Hereinafter called the Union or Council, changed a past
 practice of 100% allotment of official time to the National Council
 President.
 
    Respondent filed answers denying the commission of any unfair labor
 practices.
 
    A hearing was held in this matter before the undersigned in
 Baltimore, Maryland and Washington, D.C. on October 2, 9 and November 3,
 1980.  All parties were represented by counsel and afforded full
 opportunity to be heard, adduce relevant evidence, and examine and
 cross-examine witnesses.  All parties filed timely briefs which have
 been duly considered.
 
    Based upon 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 Order.
 
                             Findings of Fact
 
    1.  Since August 30, 1979 the Union, a labor organization within the
 meaning of section 7103(a)(4) of the Statute, has been the certified
 exclusive representative of professional and non-professional employees
 in a consolidated unit representing approximately 35,000 Field
 Operations' employees nationwide.
 
    2.  The National Council of SSA Field Operations Locals was
 established in 1977.  Prior to August 1979, the Council enjoyed national
 consultation rights with Respondent.  The function of the Council is to
 represent the interests of field operation employees of Respondent.
 Prior to the above mentioned consolidation, the Council and Respondent
 met periodically on official time.  These meetings normally were held in
 January, May and September of each year and Council officers were
 brought to Baltimore, Maryland from points around the country on travel
 and per diem paid by Respondent.  The Council officers involved in these
 meetings consisted of the president, executive vice-president,
 treasurer, secretary, administrative vice-president and ten regional
 vice-presidents.
 
    3.  William Nussbaum served as President of the Council from April
 1977 until December 1979.  During that time, President Nussbaum
 testified he "was on official time during most of that period of time."
 President Nussbaum, who was employed by Respondent as a claims
 representative in Patterson, New Jersey, also stated that during the
 time he was Council President he worked 40 hours a week, not doing
 Social Security work, but rather, doing labor relations work
 representing the interests of some 126 local unions within the Council,
 advising them how to proceed, giving them information on negotiating
 contracts, representing the interests of employees on a day-to-day basis
 and representing their interests with management in the Central Office.
 President Nussbaum stated that, he spent "100 per cent of 'his' time
 handling labor relations matters for the Social Security
 Administration."
 
    4.  Concerning how he used the official time Nussbaum stated that the
 practice of allowing him 100 percent official time applied to
 preparation time for consultation nationally as well as preparation time
 regionally.  He further testified that he was not required to notify his
 supervisor or any other management official before taking official time,
 but that he was required to notify his supervisor as to where he was
 going to be.
 
    5.  President Nussbaum also testified that in August 1978 management
 began giving him a "problem with my official time." However, he states
 that this issue was resolved by a February 9, 1979 letter from William
 C. Grace, Jr., Assistant Regional Commissioner Field Operations granting
 him "full time to conduct labor-management relations activities."
 
    6.  A March 1, 1979 memorandum from F. D. DeGeorge, Acting Deputy
 Commissioner of Social Security in response to a January 24, 1979 letter
 from Mr. John Harris, National Council of Field Operations, in a
 penciled-in notation, granted the Council President 100% time while
 granting from 1 to 3 days of official time to other Council officials to
 conduct labor-management activities related to National Consultation
 Rights.  Mr. DeGeorge's memorandum further indicates that this was
 merely an interim arrangement "pending certification of the national
 unit and simultaneous termination of the National Consultation Rights
 relationship" and that as in the past the requests for specific
 allotments for official time would be considered on a case-by-case
 basis.  The letter added that "mutually agreeable understandings on how
 and when official time is to be utilized" should be worked out so as not
 to disturb the agency's mission.  Mr. DeGeorge testified that he agreed
 to this memorandum under the theory that substantially all of the work
 of the officers, including the Council President, in a broad sense, was
 to represent their constituents in the total representation of the
 contracts and that there were many contracts.  Mr. DeGeorge also
 testified that in his view, many union officers including four of five
 senior in Local 1923, the Council President of New York, and the
 District Office Council President spent substantially all of their time
 on labor-management relations, and that he felt that he was not making a
 compromise "to allow them some time to prepare for upcoming negotiations
 on the theory they substantially spent their time in labor-management
 anyway.  /6/
 
    7.  On August 3, 1979, President Nussbaum wrote Respondent's Acting
 Associate Commissioner Herbert R. Doggette, Jr. stating, among other
 things:
 
          An area of immediate concern to our Field Operations Council
       during this transition period is the continuance of the official
       time memorandum agreed to by Mr. DeGeorge.  It is our position
       that for a responsible, effective labor-management relationship to
       continue in the Field Operation, it is imperative the official
       time policies outlined in that memo remain in effect until the
       parties have negotiated a Master Agreement which will then take
       precedence on this issue.
 
    Leo J. Corbett, Acting Associate Commissioner for Management, Budget,
 and Personnel responded to the Nussbaum letter on behalf of Mr. Doggette
 on September 18, 1979 and said:
 
          No change in existing arrangements covering official time
       authorizations is contemplated at this time.  We, too, expect that
       the matter of official time usage will be included in the
       negotiation of an agreement once the consolidated unit is
       certified.
 
    8.  On December 31, 1979, Mr. Nussbaum resigned as National Council
 President and was succeeded in that position around January 1, 1980 by
 Mr. John Harris, who had previously been Council Executive
 Vice-President.  Respondent was notified by letter dated April 3, 1980,
 about changes in National Council officers.  This letter indicated that
 Mr. Harris had become Council President on January 20, 1980.  There is
 no question that Respondent was aware that Harris had assumed the
 President's role prior to February 1980.
 
    9.  John Harris, is employed by Respondent as a claims representative
 in its St. Paul, Minnesota District Office.  Prior to becoming National
 Council President in January 1980, Harris, as previously stated, served
 as Executive Vice President of the council.  Harris testified that,
 prior to assuming the office of Council President he talked with Mr.
 Paul Arca, /3/ Branch Chief of the Division of Labor Relations Social
 Security for Field Operations in late November 1979 concerning the
 amount of official time he would be allowed for labor-management
 relations matters when he assumed the new position.  According to
 Harris, ARCA informed him that the Council President got 100 percent
 time.  Later, in December 1979, Harris talked with Arca again about a
 notification that had been initiated concerning his use of official time
 as acting Council President, a position which he occupied during that
 month.  In early January 1980, Harris testified that, Arca informed him
 "that the word had been passed down to region, but the paperwork just
 got hung up." Harris also stated that he talked with St. Paul Assistant
 District Manager Tom Potrany in an effort to jockey the paper work on
 the notification out of the regional office.
 
    10.  In early January 1980, Harris also spoke with his supervisor
 District Manager Dean Lemke concerning his use of official time.
 According to Harris, Lemke told him that, "he was told that he should
 assume that I was on official time unless I would tell him otherwise,
 that is to say, if I ran out of business to do, I would come to him and
 he would find some sort of other task to do." Harris testified that
 Lemke told him, "that in keeping with the past practice, I should inform
 him when I was going to leave the office, whether out of state or in the
 city someplace or what have you." Finally, Lemke told Harris that, "you
 won't be using official time for internal union business."
 
    11.  According to Harris, he assumed the 100 percent almost
 immediately upon becoming Council President.  He was engaged in work
 involving the receipt of information from the Agency with regard to
 proposals to make changes or the study or analysis of internal
 memorandum of the Agency with respect to operational changes in order to
 either prepare proposals or opting not to negotiate if the Union felt
 there was no impact.
 
    12.  On or around February 4, 1980, Harris submitted an itinerary to
 Lemke for the period February 11 to February 22, 1980.  The itinerary
 indicated that Harris would be in Washington to "prepare for negotiation
 of the national Master Agreement" except for several days during that
 period when he would be conferring with Deputy Commissioner Doggette.
 
    13.  Lemke responded in a memorandum entitled "Your Implied Request
 
 
 of 2/4/80 for Official Time" stating that "(p)er conversations I had
 this date with Baltimore you are allowed official time on 2/11, 2/15 and
 2/22.  Thus, on 2/12 thru 2/14 and 2/19 thru 2/21 you will not be
 allowed official time.  If absent during this period you will be charged
 leave."
 
    14.  On that same day, Harris responded to the Lemke reiterating
 that, he was requesting absences in order to draft the Master Agreement
 for the up-coming national negotiations.  Harris stated that, "I presume
 from your response that you are still instructed to deny official time
 for such 'preparation.'" Harris further stated that, because of a
 previously filed unfair labor practice charge, "I have been granted
 '100%' official time for my LMR responsibilities;  therefore, this
 denial of official time contravenes that arrangement and moreover seems
 predicated on the misconception that preparation for negotiations is
 'internal union business, as you previously characterized it." /8/
 Harris requested seventy-two (72) hours of leave without pay to cover
 the period for which leave was denied.
 
    15.  Harris testified that the above-memoranda were, in a small
 office such as St. Paul, only for the purpose of documentation.  He
 states that in conversation with Mr. Lemke, he was informed that the
 position set out by Lemke "was one that he was instructed to take by Mr.
 Paul Arca and that it was essentially a technical position, that the
 question of use of official time in this instance bore on whether or not
 preparation for bargaining was prohibited under the Statute, that is
 7131(b)." Harris also stated that the request he submitted on February
 4, 1980 was not a request for official time, but that he was providing,
 as he customarily did when going out of town, an itinerary.  Lemke's
 testimony was in no way inconsistent with that of Harris concerning the
 events surrounding the February 4, 1980 denial.
 
                        Discussion and Conclusions
 
    The record reveals that during 1977-78 the Council President was
 allowed to use 100% of his efforts for labor relations activities
 including preparations for national consultation rights matters and
 regional negotiations.  There is no dispute that the Council Presidents
 since 1977 have been allowed 100% official time for labor relations
 matters, but only that the allowance of such time does not extend to
 preparations for national negotiations.
 
    The General Counsel contends that allowing time for preparations of
 national consultation rights matters and regional negotiations
 established a past practice of allowing such time for preparations and
 that there is no substantial difference between national consultation
 and negotiations.  Respondent argues, among other things, that a
 preponderance of the evidence does not establish a past practice
 concerning preparation time.
 
    I agree with the General Counsel that there is no appreciable
 difference between national consultation and national negotiations.
 Although the purpose of each was different they both involve
 representational duties by the Council in representing employees at the
 national level.  Furthermore, if such a different exists, a stronger
 argument could be made that time should be alloted for preparation for
 negotiations since the parties are by Statute required to meet and
 bargain about working conditions.  Respondent ignores the fact that both
 involve meeting and dealing with agency officials at national and
 regional levels.  Respondent also disregards the fact that Council
 President Nussbaum was allowed to visit national headquarters for
 consultations several times yearly on official time and per diem for
 several years as Council President and that while there was allowed
 preparation time.  Unless the parties bargained a new agreement with
 respect to the time allocation, it is my view that this practice is
 extant.  It is, therefore, found that a past practice of allowing time
 for preparation for national consultations and regional negotiations
 existed.  It is further found, that such allocation inured to the
 benefit of any succeeding Council President unless changed through good
 faith negotiations.
 
    It is axiomatic that once a past policy or practice has matured into
 a term or condition of employment, it may not be unilaterally changed.
 Respondent urges that certain criteria are needed to establish a past
 practice.  While I agree, it is evident from the record that Council
 President Nussbaum was not only allowed 100% of his time for labor
 relations matters, but that he also attended negotiations and
 consultation meetings for which he was allowed time for preparation of
 the Council's position on all matters involving labor relations whether
 at the local or national level.  The testimony of Nussbaum reveals that
 a great deal of his time was spent in helping locals prepare for
 bargaining.  Likewise President Harris testified that a large part of
 his work as Council President involved receipt of information from the
 Agency and preparation of proposals.  Thus, it appears that a
 substantial portion of the National Council President's time has always
 involved preparations for both negotiations and consultations.  I see no
 real distinction between those preparations done at their respective
 offices and traveling to Baltimore or Washington, D.C. to prepare for
 negotiations.  Further, Respondent has not challenged in any meaningful
 manner the use of 100% official time by the Council President, but has
 acquiesced in his use of 100% official time as he deemed necessary.
 Moreover, to allow full use of the Council President's time for
 labor-relations matters and then to attempt to tell him how to use that
 time appears not only to be interference with the manner in which he
 fulfilled his office, but is as described by Justice Jackson "only a
 promise to the ear to be broken to the hope, a teasing illusion like a
 munificent bequest in a paupers will." Edwards v. California, 314 U.S.
 160, 196 (1941) concurring opinion.
 
    In this case, the Council President was improperly denied official
 time for preparation for national negotiations on February 4, 1980 based
 on Respondent erroneous view that such preparations were "internal union
 business." The Authority has clearly stated, based on its review of the
 legislative history of the Statute that activities such as collective
 bargaining negotiations which involve labor-management contracts, as
 well as preparation for such activities are not "internal union
 business." See American Federation of Government Employees, Local 1692
 and Headquarters, 323 Flying Wing (ATC), Mather Air Force Base,
 California, 3 FLRA No. 47 (1980);  Federal Uniformed Firefighters, Local
 F-169 and U.S. Army Armament Research and Development Command, Dover,
 New Jersey, 3 FLRA No. 1980.  Under the above cited cases, there exists
 a duty to bargain concerning the amount of official time to be allowed
 union negotiators.  Prior practice had established entitlement to 100%
 official time in this matter and Respondent may not unilaterally alter
 that practice without notification and bargaining.  /9/
 
    Even assuming the General Counsel had not established the existence
 of a past practice in this case, the March 1, 1979 memorandum of Deputy
 Commissioner DeGeorge reveals that the Council President was entitled to
 100% of his time as "an interim arrangement pending certification of the
 national unit and the simultaneous termination of the National
 Consultation rights relationship." While there was certification of the
 consolidated unit in August 1979 the parties were still in the process
 of bargaining on the national Master Agreement and the interim agreement
 as part of the past relationship was still in effect.  Thus, Respondent
 and the Union extended the existing allowance of official time to the
 Council President beyond the certification of the consolidated units by
 letter dated September 18, 1980 until different arrangements were
 negotiated between the parties.  To argue that there is a dispute over
 how much official time the Council President is entitled to flies
 directly in the face of the March 1979 agreement between the parties,
 which established on an interim basis that the Council President was
 entitled to unlimited or 100% usage of official time for labor relations
 activities.  Therefore, it is found that so long as he was not engaged
 in "internal union business" the Council President was entitled to use
 100% of his time for labor relations matters under both established past
 practice and the March 1979 agreement.  Respondent's denial of the
 February 1980 request for official time based on its erroneous belief
 that Harris was going to be engaged in "internal union business" for a
 substantial portion of the time that his itinerary stated is found to be
 both a change in the established past practice and in derogation of the
 March 1979 agreement, without notice to or bargaining with the Union.
 
    Accordingly, it is found that Respondent's refusal to grant official
 time to National Council President Harris in February 1980, because he
 would be engaging in "internal union business" constituted a unilateral
 change in a term or condition of employment without good faith
 negotiations and is violative of sections 7116(a)(1) and (5) of the
 Statute.
 
    Having found that Respondent violated section 7116(a)(1) and (5) of
 the Statute, it is recommended that the Authority adopt the following
 Order.
 
                                   ORDER
 
    Pursuant to Section 7118(a)(7)(A) of the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. 7118(a)(7)(A), and Section
 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section
 2423.29(b)(1), the Authority hereby orders that the Social Security
 Administration, Baltimore, Maryland, shall:
 
    1.  Cease and desist from:
 
          (a) Unilaterally instituting changes with respect to the 100%
       allowance of official time to John D. Harris, President of the
       National Council of Social Security Field Operations Locals,
       American Federation of Government Employees, AFL-CIO, without
       providing notice to, and upon request, meeting with and bargaining
       with the National Council of Social Security Field Operations
       Locals, American Federation of Government Employees, AFL-CIO, the
       exclusive representative of its employees, or any other exclusive
       representative.
 
          (b) In any like or related manner interfering with, restraining
       or coercing its employees of their rights assured by the Statute.
 
    2.  Take the following affirmative actions:
 
          (a) Provide John H. Harris, President of the National Council
       of Social Security Field Operations Locals, American Federation of
       Government Employees, AFL-CIO with official time for the
       performance of his representational duties during February 1980,
       and make him whole for any annual leave or leave without pay he
       may have utilized during that period to perform his
       representational duties.
 
          (b) Post at its offices in Baltimore, Maryland and St. Paul,
       Minnesota, wherein unit employees are located, copies of the
       attached notice marked "Appendix." Copies of said notice, to be
       furnished by the Commissioner, after being signed by an authorized
       representative, shall be posted by representatives of the
       Baltimore, Maryland and St. Paul, Minnesota, immediately upon
       receipt thereof and be maintained by such representative for 60
       consecutive days thereafter, in conspicuous places, including all
       places where notice to employees are customarily posted.
       Reasonable steps shall be taken to insure that said notices are
       not altered, defaced, or covered by any other material.
 
          (c) 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.
 
                                       ELI NASH, JR.
                                       Administrative Law Judge
 
 Dated:  June 25, 1981
          Washington, D.C.
 
 
 
                          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 fail or refuse to provide John D. Harris or any other Agency
 employee while engaged in representing the National Council of Social
 Security Field Operations Locals, American Federation of Government
 Employees, AFL-CIO, the employees exclusive representative, official
 time for participation in labor relations matters.  WE WILL NOT in any
 like or related manner, interfere with, restrain or coerce such
 employees in the exercise of their rights assured by the Statute.  WE
 WILL, upon request provide John D. Harris official time for performance
 of his representational duties and make him whole for any annual leave
 or leave without pay he may have utilized during February 1980, the
 period when he was engaged in representational duties as a
 representative of the National Council of Social Security Field
 Operations Locals.
                                       (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 its provisions, they
 may communicate directly with the Regional Director of Region III,
 Federal Labor Relations Authority, whose address is:  1133 15th Street,
 NW., Suite 300, Washington, D.C.  20005;  Telephone Number:  (202)
 653-8506
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Respondent excepted to certain credibility findings made by
 the Judge.  The demeanor of witnesses is a factor of consequence in
 resolving issues of credibility, and the Judge has had the advantage of
 observing the witnesses while they testified.  The Authority will not
 overrule a Judge's resolution with respect to credibility unless a clear
 preponderance of all the relevant evidence demonstrates that such
 resolution was incorrect.  The Authority has examined the record
 carefully, and finds no basis for reversing the Judge's credibility
 findings.  In addition, the Authority finds no merit to the Respondent's
 related exception that the Judge exhibited prejudgment and bias which
 tainted his credibility findings by encouraging the parties to settle
 the case in off-the-record discussions after a management witness had
 testified in a manner adverse to the Respondent's position.  See Bureau
 of Government Financial Operations Headquarters, 11 FLRA No. 68 (1983).
 
 
    /2/ See also Federal Uniformed Firefighters, Local F-169 and the U.S.
 Army Armament Research and Development Command, Dover, New Jersey, 3
 FLRA 316 (1980).
 
 
    /3/ In so concluding, the Authority does not adopt the Judge's
 statement that " . . . there is no appreciable difference between
 national consultation and national negotiations."
 
 
    /4/ The Authority has modified the Notice so that it conforms with
 the Order and addresses the violation found.
 
 
    /5/ The name appears as amended.
 
 
    /6/ Claiming surprise at the testimony of its own witness Mr.
 DeGeorge, Respondent sought to impeach that testimony by calling several
 witnesses including Mr. Paul Arca, Mr. Irving L. Becker and Mr. Herbert
 R. Doggette.  While the claim of surprise is well taken, I find no
 reason on this record to discredit the testimony of Mr. DeGeorge.  Mr.
 DeGeorge displayed no hostility while on the stand and related only his
 understanding as to the meaning of the March 1, 1979 memorandum and what
 his understanding as to the amount of time used by union senior
 officials at that time was.  It is noted Mr. DeGeorge was the
 Respondent's chief spokesman responsible for carrying forth its position
 on official time during that period and his testimony conveyed what his
 opinion was at the time of preparation and signature of the memorandum.
 I specifically would not rely on Mr. DeGeorge's not having conveyed all
 his understanding of what the memorandum meant, for it appears that the
 deal had been struck and the memorandum clearly sets out what Respondent
 was willing to give concerning official time as of that date.
 Therefore, the above testimony of Mr. DeGeorge which is relevant to the
 proceeding is credited.
 
 
    /7/ In its brief the General Counsel requested that certain testimony
 of Mr. Arca be discredited.  In view of the contradictory testimony of
 Mr. Arca, I find that he was familiar with the past practice of allowing
 100% official time to the Council President, at least since 1977.
 
 
    /8/ A similar request made by Harris while he was National Council
 Executive Vice-President for official time for November 15 and 16, 1979,
 was also denied by Lemke on November 9, 1979 on the basis that "official
 time is not granted for internal union business." Th