13:0112(29)CA - SSA and AFGE -- 1983 FLRAdec CA
[ v13 p112 ]
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." The record also shows, consistent with Respondent's position that Harris was again denied official time in March 1980 because Respondent asserted that he was engaged in internal union business. /9/ Respondent asserts that "preparations" for negotiations were indeed "internal union business" and its denial of the official time to President Harris was based on this misunderstanding. Such a position, however, obscures the real issue in the case which is whether or not the National Council President had been allowed in the past to devote all of his effort to labor relations activities which included negotiations and preparation for negotiations. The Authority specifically did not rule on the question of what constituted preparations in American Federation of Government Employees, Local 1692, supra, and stated that such a question should be before an arbitrator. However, I find that the question of whether "preparations" are involved is not before me in this case since the parties had already reached agreement on time allotments. Consequently, it is unnecessary for me to reach the issue of what constitutes preparations so as to place the issue before an arbitrator.