Norfolk Naval Shipyard, Norfolk, Virginia (Respondent) and Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO (Charging Party) 

 4 FLRA No. 91
 
 NORFOLK NAVAL SHIPYARD
 NORFOLK, VIRGINIA
 Respondent
 
 and
 
 TIDEWATER VIRGINIA FEDERAL EMPLOYEES
 METAL TRADES COUNCIL, AFL-CIO
 Charging Party
 
                                            Case Nos. 3-CA-150 
                                                      3-CA-526
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE ENTITLED PROCEEDING ISSUED
 HIS RECOMMENDED DECISION AND ORDER 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 OF THE FEDERAL LABOR RELATIONS AUTHORITY
 FILED EXCEPTIONS, WITH A SUPPORTING BRIEF, TO THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY HAS REVIEWED THE
 RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS
 THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY
 AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE,
 INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS
 THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS /1/ AND
 RECOMMENDATIONS, EXCEPT AS MODIFIED HEREIN.
 
    THE AUTHORITY AGREES THAT A UNILATERAL CHANGE IN AN ESTABLISHED PAST
 PRACTICE COULD CONSTITUTE AN UNFAIR LABOR PRACTICE.  IN THE INSTANT
 SITUATION, THE SUPERVISOR REFUSED TO ALLOW THE UNION STEWARD TO BE
 RELEASED FROM DUTY ON HIS OWN RECOGNIZANCE TO CONDUCT UNION RELATED
 BUSINESS, WHICH HAD BEEN A LONG STANDING PRACTICE.  IMMEDIATELY
 THEREAFTER, HOWEVER (APPROXIMATELY TEN MINUTES), THE SUPERVISOR WAS
 INFORMED OF HIS ERROR BY HIS SUPERIORS AND THE STEWARD WAS RELEASED TO
 CONDUCT UNION BUSINESS.  IN THE AUTHORITY'S VIEW, IT WOULD NOT
 EFFECTUATE THE PURPOSES AND POLICIES OF THE STATUTE TO FIND A VIOLATION
 OR ISSUE A REMEDIAL ORDER, IN VIEW OF THE IMMEDIATE RECTIFICATION OF
 SUCH CONDUCT BY THE RESPONDENT.
 
    THE ADMINISTRATIVE LAW JUDGE, IN RECOMMENDING DISMISSAL OF THE
 INSTANT COMPLAINT, REASONED AS FOLLOWS:
 
    " . . . AS IT IS FURTHER CLEAR THAT MR. BARBER'S ACT DID NOT
 REPRESENT RESPONDENT'S POLICY,
 
    AS WAS MADE CLEAR TO MR. BARBER BY MESSRS. SPANAGEL AND JAMES THE
 FOLLOWING DAY, I CONCLUDE
 
    . . . THAT A FINDING THAT RESPONDENT VIOLATED THE STATUTE IS NOT
 WARRANTED . . .
 
    . . . THE FLEETING VIOLATION WAS CORRECTED IMMEDIATELY AFTER IT
 OCCURRED, WAS CONTRARY TO
 
    RESPONDENT'S POLICY, WHICH WAS STRONGLY REAFFIRMED THE FOLLOWING DAY.
  NOT ONLY DO I FIND THE
 
    VIOLATION DE MINIMUS UNDER THE CIRCUMSTANCES;  BUT I FURTHER FIND
 THAT THE VIOLATION WAS
 
    RENDERED MOOT BY MR. BARBER'S WITHDRAWAL OF HIS INSTRUCTION
 IMMEDIATELY AFTER HE ISSUED IT AND
 
    BY RESPONDENT'S REAFFIRMATION OF ITS POLICY THE FOLLOWING DAY .  . ."
 THE AUTHORITY DOES NOT ADOPT THESE STATEMENTS TO THE EXTENT THAT THEY
 IMPLY THAT MANAGEMENT MAY NOT NECESSARILY BE HELD ACCOUNTABLE FOR THE
 ACTIONS OF ITS LOWER LEVEL MANAGERS IF THOSE ACTIONS CLEARLY CONTRAVENE
 STATED MANAGEMENT POLICIES.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINTS IN CASE NOS. 3-CA-150 AND
 3-CA-526 BE, AND THEY HEREBY ARE, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 24, 1980
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    BRUCE ROSENSTEIN, ESQUIRE
    SUSAN SHINKMAN, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    WALTER BAGBY, ESQUIRE
    MR. JAMES D. MAGOWEN
    FOR THE RESPONDENT
 
    BEFORE:  WILLIAM B. DEVANEY
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE, 5
 U.S.C. 7101, ET SEQ., /2/ AND THE FINAL RULES AND REGULATIONS ISSUED
 THEREUNDER, FED. REG. VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R.
 CHAPTER XIV.
 
    A CHARGE WAS FILED IN CASE NO. 3-CA-150 ON APRIL 20, 1979, ALLEGING
 VIOLATIONS OF SECTIONS 16(A)(1), (2), (5) AND (8) G.C. EXH. 1(A));  AN
 AMENDED CHARGE WAS FILED ON SEPTEMBER 13, 1979, ALLEGING VIOLATIONS OF
 SECTIONS 16(A)(1), (2), (3) AND (8)G.C. EXH. 1 (B));  A SECOND AMENDED
 CHARGE WAS FILED ON NOVEMBER 26, 1979, ALLEGING VIOLATIONS OF SECTIONS
 16(A)(1), (3), (5) AND (8);  AND THE COMPLAINT AND NOTICE OF HEARING IN
 CASE NO. 3-CA-150 ISSUED ON DECEMBER 28, 1979, ALLEGING VIOLATIONS OF
 SECTIONS 16(A)(1), (5) AND (8)(G.C. EXH. 1(K)).  THE 16(A)(8) ALLEGATION
 ("TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
 CHAPTER") IS BASED ON AN ASSERTED INTERFERENCE WITH REPRESENTATION
 RIGHTS GRANTED BY SEC. 14 OF THE STATUTE.  THERE ARE FOUR DISTINCT ACTS
 OF ALLEGED INTERFERENCE WITH RIGHTS AND DUTIES PROTECTED BY SEC.  14,
 THREE OF WHICH ARE SET FORTH IN PARAGRAPH 6 OF THE COMPLAINT IN CASE NO.
 3-CA-150 AND THE FOURTH IS SET FORTH IN PARAGRAPH 6 OF THE COMPLAINT IN
 CASE NO. 3-CA-526.
 
    A CHARGE WAS FILED IN CASE NO. 3-CA-526 ON SEPTEMBER 21, 1979,
 ALLEGING VIOLATIONS OF SECTIONS 16(A)(1), (2), (4) AND (8) (G.C. EXH.
 1(D));  A FIRST AMENDED CHARGE WAS FILED ON DECEMBER 17, 1979, ALLEGING
 VIOLATIONS OF SECTIONS 16(A)(1), (5) AND (8) (G.C. EXH.  1(E)), AND THE
 COMPLAINT AND NOTICE OF HEARING IN CASE NO. 3-CA-526 ISSUED ON DECEMBER
 28, 1979, ALLEGING VIOLATIONS OF SECTIONS 16(A)(1), (5) AND (8).  EACH
 CASE, I.E., 3-CA-150 AND 3-CA-526, WAS SET FOR HEARING ON MARCH 22,
 1980.  RESPONDENT'S ANSWER IN EACH CASE WAS SERVED ON JANUARY 4, 1980
 (G.C. EXHS. 1(M) AND 1(P)), ON FEBRUARY 12, 1980, THE REGIONAL DIRECTOR
 ISSUED AN ORDER CONSOLIDATING CASES (G.C. EXH. 1(Q));  AND PURSUANT
 THERETO, A HEARING WAS DULY HELD BEFORE THE UNDERSIGNED ON MARCH 11, AND
 12, 1980 IN NORFOLK, VIRGINIA.
 
    ALL PARTIES WERE REPRESENTED BY ABLE COUNSEL, WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES AND TO
 INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN.  AT THE CLOSE
 OF THE HEARING, APRIL 12, 1980, WAS FIXED AS ITS DATE FOR MAILING
 POST-HEARING BRIEFS AND COUNSEL FOR EACH PARTY HAVE TIMELY MAILED
 HELPFUL BRIEFS, RECEIVED ON APRIL 14, 1980, WHICH HAVE BEEN CAREFULLY
 CONSIDERED.  UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
 FINDINGS AND CONCLUSIONS:
 
                         FINDINGS AND CONCLUSIONS
 
    1.  PARAGRAPH 6(B) OF THE COMPLAINT IN CASE NO. 3-CA-150
 
    PARAGRAPH 6(B) OF THIS COMPLAINT READS AS FOLLOW:
 
    "(B) ON OR ABOUT APRIL 17, 1979, RESPONDENT BY ITS ELECTRIC SHOP
 PRODUCTION SUPERINTENDENT,
 
    JOHN DAVID SPANAGEL, ISSUED A MEMORANDUM TO THE UNION'S CONFERENCE
 COMMITTEE CHAIRMAN WHICH
 
    PROHIBITED ANOTHER UNION OFFICIAL FROM ACTING AS AN ALTERNATE
 CONFERENCE COMMITTEE MEMBER OF
 
    THE UNION'S CONFERENCE COMMITTEE:  (1 G.C. EXH. 1(K)).
 
    RESPONDENT ASSERTED IN ITS OPENING STATEMENT, IN THE COURSE OF THE
 HEARING, AND IN ITS BRIEF THAT CONSIDERATION OF THIS ALLEGATION IS
 PRECLUDED BY SEC. 16(D) OF THE STATUTE AS THE SAME ISSUE HAD BEEN RAISED
 UNDER THE PARTIES' NEGOTIATED GRIEVANCE PROCEDURE.  /3/ FOR THE REASONS
 SET FORTH HEREINAFTER, I AGREE.
 
    ON DECEMBER 13, 1978, THE CHAIRMAN OF THE METAL TRADES COUNCIL
 ADVISED RESPONDENT OF THE ELECTED MEMBERS, AND ALTERNATE, OF THE
 CONFERENCE COMMITTEE FOR 1979 (RES.  EXH. 2).  MR. B.W. WHITE WAS NOT
 DESIGNATED AS EITHER A MEMBER OR AN AN ALTERNATE.  ON JANUARY 5, 1979,
 MR. D.P. BRYAN, THEN ACTING CHAIRMAN OF THE METAL TRADES COUNCIL,
 ADVISED RESPONDENT THAT MR.  WHITE WOULD SERVE AS THE SECOND MAN IN THE
 METAL TRADES COUNCIL OFFICE FROM JANUARY 9 TO 22, 1979 (RES. EXH. 3).
 BY MEMORANDUM DATED JANUARY 8, 1979, RESPONDENT DECLINED TO RECOGNIZE
 THE REQUEST OF JANUARY 5, 1979, BECAUSE MR. WHITE WAS NOT A MEMBER OF
 THE CONFERENCE COMMITTEE (RES. EXH. 4).  ON MARCH 5, 1979, MR. WHITE,
 ALTHOUGH NOT NAMED A MEMBER OF THE CONFERENCE COMMITTEE, WAS DESIGNATED
 BY MR. BRYAN, TO ACT AS CHAIRMAN IN MR. BRYAN'S ABSENCE (G.C. EXH. 3)
 AND ON MARCH 23, 1979, MR. WHITE WAS DESIGNATED AS ALTERNATE MEMBER OF
 THE CONFERENCE COMMITTEE BUT MR. L.S. NARDOZI WAS DESIGNATED TO ACT AS
 CHAIRMAN IN MR. BRYAN'S ABSENCE (G.C. EXH. 4).
 
    ON APRIL 17, 1979, MR. BRYAN, THEN CHAIRMAN OF THE METAL TRADES
 COUNCIL, ADVISED RESPONDENT THAT IN THE ABSENCE OF THE CHAIRMAN, OR ANY
 OTHER MEMBER OF ITS CONFERENCE COMMITTEE, MR. WHITE WOULD ASSUME THEIR
 RESPONSIBILITIES (RES. EXH. 5).  BY SEPARATE MEMORANDUM, ALSO DATED
 APRIL 17, 1979, MR. BRYAN REQUESTED MR. WHITE'S PRESENCE AT A MEETING ON
 APRIL 17 (RES. EXH. 6).  BY MEMORANDUM DATED APRIL 17, 1979, MR. J. D.
 SPANAGEL, PRODUCTION SHOP SUPERINTENDENT FOR SHOP 51, ELECTRIC SHOP,
 ADVISED MR. BRYAN, IN PART, AS FOLLOWS:
 
    "SUBJ:  DESIGNATION OF ALTERNATE COUNCIL CONFERENCE COMMITTEE MEMBER
 AND STEWARD.
 
    "REF:  (A) YOUR MEMO OF APRIL 1979
 
    "1.  DUE TO THE EXTREMELY HEAVY WORKLOAD IN SHOP 51 AT THE PRESENT
 TIME, WE WILL BE UNABLE
 
    TO PERMIT MR. WHITE TO ACT AS AN ALTERNATE FOR THE CHAIRMAN OR
 COUNCIL CONFERENCE COMMITTEE
 
    MEMBER.
 
    "2.  I AM SURE THAT THERE ARE OTHER MEMBERS OF M.T.C. THAT HAVE A
 LESSER WORKLOAD THAN IN
 
    SHOP 51.  IT IS SUGGESTED THAT THEY ASSIGN A MEMBER FROM ANOTHER
 SHOP. . . . "(RES. EXH. 7,
 
    ATTACHMENT;  G.C. EXH. 5)
 
    ON APRIL 17, 1979, THE FOLLOWING GRIEVANCE WAS FILED UNDER ITS
 PARTIES' NEGOTIATED GRIEVANCE PROCEDURE:
 
    "FROM (GRIEVANT) B.W. WHITE, SR.
 
    "POSITION ELECTRICIAN-- CHIEF STEWARD
 
                   ALTERNATE CONFERENCE COMMITTEE MEMBER
 
    "SHOP CODE X 51
 
    "STEP NO.  2
 
    "TO" MR. SPANAGEL
 
    "ARTICLE(S) AND SECTION(S) GRIEVED
 
    ART. 7-- SEC. 1-- ALSO LETTER OF INTENT TO CODE 160 & 951-- IN REF.
 ALTERNATE CONF. COMM. MEMBER.
 
    "DATE OF INCIDENT OR KNOWLEDGE OF INCIDENT"
 
    4-17-79
 
    "PRECISE NATURE OF GRIEVANCE"
 
    "CAN NOT BE RELEASED TO CONDUCT PROPER UNION BUS.  ALSO LETTER OF
 INTENT IS NOT RECOGNIZED
 
    BY CODE 951 /4/ (SUE ALLEN) IN REF. TO B.W. WHITE BEING A ALTERNATE
 CONF. COMM. MEMBER."
 
    "CORRECTIVE ACTION DESIRED"
 
    "ABIDE BY ARTICLE 7-- SEC. 1 OF THE NEGOTIATED AGREEMENT." (RES. EXH.
 7) THE GRIEVANCE WAS SIGNED BY MR. WHITE;  BY MR. A. R. LEE, STEWARD;
 AND BY MR. BRYAN AS CHIEF STEWARD.  ATTACHED TO THE GRIEVANCE WERE:  MR.
 SPANAGEL'S MEMORANDUM ON APRIL 17, 1979;  AND MR. BRYAN'S TWO MEMORANDA
 OF APRIL 17, 1979.
 
    ALTHOUGH IT MAY BE DEBATABLE WHETHER "LETTER OF INTENT" REFERRED TO
 MR. BRYAN'S MEMORANDUM OF APRIL 17, 1979, TO THE EFFECT THAT MR. WHITE
 WAS NEEDED AT A GRIEVANCE MEETING, OR TO MR. BRYAN'S MEMORANDUM OF APRIL
 17, 1979, ADVISING THAT, IN THE ABSENCE OF THE CHAIRMAN OR ANY OTHER
 CONFERENCE COMMITTEE MEMBER, MR. WHITE WOULD ASSUME THEIR
 RESPONSIBILITIES, THERE CAN BE NO DOUBT THAT THE GRIEVANCE RAISED AS AN
 ISSUE THE REFUSAL OF RESPONDENT TO RELEASE MR.  WHITE TO CONDUCT PROPER
 UNION BUSINESS AND THAT THE GRIEVANCE RAISED AN AN ISSUE, MR. WHITE
 BEING AN ALTERNATE CONFERENCE COMMITTEE MEMBER.  PARAGRAPH 6(B) OF THE
 COMPLAINT IN CASE NO.  3-CA-150, RAISES PRECISELY THE SAME ISSUE, OR
 ISSUES, NAMELY:
 
    "ON . . . APRIL 17, 1979, RESPONDENT . . . ISSUED A MEMORANDUM TO THE
 UNION'S CONFERENCE
 
    COMMITTEE CHAIRMAN (MR. BRYAN) WHICH PROHIBITED . . . (MR.  WHITE)
 FROM ACTING AS AN ALTERNATE
 
    CONFERENCE COMMITTEE MEMBER . . ." (G.C. EXH. 1(K)).
 
    GENERAL COUNSEL'S STATEMENT THAT:
 
    " . . . IT IS THE GENERAL COUNSEL'S POSITION THAT THE ALLEGATION IN
 THE COMPLAINT REGARDING
 
    THE MEMO OF APRIL 17, 1979 DOES NOT RAISE THE SAME ISSUE AS THAT
 RAISED IN THE GRIEVANCE
 
    (RES. EXH. NO. 7).  THAT GRIEVANCE REFERS SPECIFICALLY TO AN INCIDENT
 ON APRIL 17, 1979 AND AN
 
    ALLEGATION THAT BERNIE WHITE WAS NOT RELEASED TO CONDUCT UNION
 BUSINESS, PRESUMABLY AS A
 
    RESULT OF SPANAGEL'S MEMO.  THE ALLEGED UNFAIR LABOR PRACTICE IS THE
 ISSUANCE OF THE
 
    MEMORANDUM PROHIBITING WHITE FROM SERVING AS AN ALTERNATE CONFERENCE
 COMMITTEE MEMBER FROM
 
    APRIL 17, 1979 TO MAY 2, 1979.  /5/ WHILE THE GRIEVANCE REFERS TO AN
 INFRINGEMENT ON AN
 
    INDIVIDUAL'S USE OF OFFICIAL TIME, THE ALLEGATION IN THE COMPLAINT
 REFERS TO THE RESPONDENT'S
 
    INTERFERENCE AND INTRUSION INTO WHAT IS CLEARLY AN INTERNAL UNION
 MATTER." (G.C. BRIEF
 
    PP. 7-8).  WHOLLY IGNORES THE PLAIN STATEMENT OF THE GRIEVANCE.  IT
 IS TRUE THAT THE GRIEVANCE STATED "CANNOT BE RELEASED TO CONDUCT PROPER
 UNION BUS.", BUT THE GRIEVANCE FIRST, IN "ARTICLES AND SECTIONS
 GRIEVED," FURTHER, SPECIFICALLY, STATED "ALSO LETTER OF INTENT TO CODE
 160 & 951 IN REF. ALTERNATE CONF. COMM. MEMBER" AND THEN IN THE "PRECISE
 NATURE OF GRIEVANCE" SPECIFICALLY STATED "ALSO LETTER OF INTENT IS NOT
 RECOGNIZED BY CODE 951 . . . IN REF. TO B.W. WHITE BEING A ALTERNATE
 CONF. COMM. MEMBER." THE ATTACHMENTS TO THE GRIEVANCE, MR. BRYAN'S TWO
 MEMORANDA OF APRIL 17, 1979, AND MR. SPANAGEL'S MEMORANDUM OF APRIL 17,
 1979, FURTHER SPELL OUT THE TWO INTERTWINED ISSUES RAISED BY THE
 GRIEVANCE, NAMELY, THE ASSERTION THAT MR. WHILE WAS NOT RELEASED TO
 CONDUCT UNION BUSINESS AND "ALSO" THAT LETTER OF INTENT IS NOT
 RECOGNIZED BY CODE 951 IN REF.  TO B.W. WHITE BEING AN ALTERNATE CONF.
 COMM. MEMBER.  MOREOVER, MR. SPANGEL'S DISPOSITION OF THE GRIEVANCE, ON
 APRIL 23, 1979, WAS "MY LETTER 951-186-79 OF 17 APRIL 1979 ANSWERS THIS
 GRIEVANCE." (RES. EXH. 7).
 
    NEITHER MR. WHITE, THE GRIEVANT, NOR THE UNION OFFICIALS WHO SIGNED
 THE GRIEVANCE, MESSRS. LEE AND BRYAN, TESTIFIED.  MR. SPANAGEL TESTIFIED
 THAT HE DICTATED HIS MEMORANDUM OF APRIL 17, 1979 TO MS. ALLEN WHO TYPED
 IT FOR HIS SIGNATURE.  FINALLY, WHILE MR. WHITE'S PURPOSE OR INTENT OF
 HIS REFERENCE TO "(SUE ALLEN)" IN HIS APRIL 17, 1979, GRIEVANCE WAS NOT
 EXPLAINED, /6/ MR. SPANAGEL TESTIFIED:  (A) THE GRIEVANCE CONCERNED HIS
 MEMORANDUM ON APRIL 17, 1979, (TR. 106) AND (B) THE REFERENCE TO MS.
 ALLEN." . . . DOESN'T MAKE SENSE (TR. 105).
 
    FOR ALL THE FOREGOING REASONS, I CONCLUDE THAT THE GRIEVANCE OF APRIL
 17, 1919 (RES. EXH. 7) RAISED THE SAME ISSUES AS IS ALLEGED IN PARAGRAPH
 6(B) OF THE COMPLAINT IN CASE NO. 3-CA-150.  SECTION 16(D) OF THE
 STATUTE PROVIDES, IN PERTINENT PART, AS FOLLOWS:
 
    " . . . ISSUES WHICH CAN BE RAISED UNDER A GRIEVANCE PROCEDURE MAY,
 IN THE DISCRETION OF
 
    THE AGGRIEVED PARTY, BE RAISED UNDER THE GRIEVANCE PROCEDURE OR AS AN
 UNFAIR LABOR PRACTICE
 
    UNDER THIS SECTION, BUT NOT UNDER BOTH PROCEDURES." (5 U.S.C.
 7116(D)).
 
    SECTION 21(E)(1) OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
 FOLLOWS:
 
    " . . . AN EMPLOYEE SHALL BE DEEMED TO HAVE EXERCISED HIS OPTION . .
 . UNDER THE NEGOTIATED
 
    GRIEVANCE PROCEDURE AT SUCH TIME AS THE EMPLOYEE . . . TIMELY FILES A
 GRIEVANCE IN WRITING IN
 
    ACCORDANCE WITH THE PROVISIONS ON THE PARTIES' NEGOTIATED GRIEVANCE
 PROCEDURE . . . " (5
 
    U.S.C. 7121(E)(1)).
 
    SECTION 16(D) WAS TAKEN SUBSTANTIALLY WITHOUT CHANGE FROM SECTION
 19(D) OF EXECUTIVE ORDER 11491, AS AMENDED.  INDEED, THE REPORT OF THE
 COMMITTEE ON GOVERNMENTAL AFFAIRS OF THE UNITED STATES SENATE, TO
 ACCOMPANY S. 2640, WHICH BILL ULTIMATELY BECAME THE CIVIL SERVICE REFORM
 ACT, EMPHASIZED THAT THIS SECTION IS " . . . SIMILAR TO A PROVISION
 CONTAINED IN SECTION 19(D) OF EXECUTIVE ORDER 11491) . . . " (S. REP.
 NO. 95-969, AT P. 107 (JULY 10, 1979)).  THE CLEAR INTENT OF SEC. 16(D)
 IS THAT IT IS TO OPERATE IN THE SAME MANNER AS SECTION 19(D) OF
 EXECUTIVE ORDER 11491, AS AMENDED, HAD OPERATED.  THIS IS PLAINLY SHOWN
 BY THE LANGUAGE OF THE STATUTE AS WELL AS BY ITS LEGISLATIVE HISTORY.
 U.S. INTERNAL REVENUE SERVICES, CHICAGO, ILLINOIS, 5-CA-77 (ALJ),
 NOVEMBER 14, 1979.  ACCORDINGLY, AS THE SAME ISSUE AS SET FORTH IN
 PARAGRAPH 6(B) OF THE COMPLAINT IN CASE NO. 6-CA-150, HAD PREVIOUSLY
 BEEN RAISED BY THE GRIEVANCE OF APRIL 17, 1979, SEC. 16(D) PRECLUDES
 CONSIDERATION OF SUCH ISSUE HEREIN AND THE ALLEGATIONS OF PARAGRAPH 6(B)
 ARE, THEREFORE, DISMISSED.  U.S. INTERNAL REVENUE SERVICE, SUPRA;
 NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA, 2 FLRA NO. 104 (1980);
 DEPARTMENT OF THE NAVY, PEARL HARBOR NAVAL SHIPYARD, CASE NO.
 73-587(CA), RULINGS ON REQUESTS FOR REVIEW OF THE ASSISTANT SECRETARY
 NO. 506 (1975), APPEAL DENIED, FLRC NO. 75A-57, 3 FLRC 596 (1975);
 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, A/SLMR NO. 707, 6 A/SLMR 484
 (1976).
 
    2.  THREE REMAINING ALLEGATIONS OF THE COMPLAINTS
 
    THE THREE REMAINING ALLEGATIONS ARE:
 
    PARAGRAPH 6(A) OF THE COMPLAINT IN CASE NO. 3-CA-150 WHICH ALLEGES
 THAT, "SINCE ON OR ABOUT JANUARY 31, 1979, RESPONDENT BY ITS ELECTRIC
 SHOP PRODUCTION SUPERINTENDENT, JOHN DAVID SPANAGEL, HAS RESTRICTED A
 UNION OFFICIAL (MR. WHITE) FROM PERFORMING UNION-RELATED BUSINESS BY
 ASSIGNING . . . URGENT WORK." (HEREINAFTER REFERRED TO AS "ISSUE NO.
 1").
 
    PARAGRAPH 6(C) OF THE COMPLAINT IN CASE NO. 3-CA-150 WHICH ALLEGES
 THAT, "SINCE ON OR ABOUT APRIL 1979 . . . RESPONDENT BY IT (SIC) FOREMAN
 ELECTRICIAN, CALVIN D.  NEWBY, REQUIRED A UNION OFFICIAL TO PROVIDE
 TWENTY-FOUR (24) HOUR (SIC) NOTICE BEFORE BEING PERMITTED TO CONDUCT
 UNION-RELATED BUSINESS." (HEREINAFTER REFERRED TO AS "ISSUE NO. 2").
 
    PARAGRAPH 6 OF THE COMPLAINT IN CASE NO. 3-CA-526 WHICH ALLEGES THAT,
 "SINCE ON OR ABOUT AUGUST 1, 1979 AND CONTINUING TO DATE, RESPONDENT HAS
 INTERFERED WITH, RESTRAINED ITS EMPLOYEES IN THE EXERCISE OF RIGHTS
 GUARANTEED IN THE STATUTE AND HAS FAILED AND REFUSED AND CONTINUES TO
 FAIL AND REFUSE TO BARGAIN IN GOOD FAITH WITH THE UNION.  FURTHER,
 RESPONDENT HAS EMBARKED UPON A COURSE OF CONDUCT DESIGNED TO UNDERMINE
 THE UNION AS THE EMPLOYEES' COLLECTIVE BARGAINING REPRESENTATIVE WHEN IT
 INSTRUCTED A UNION OFFICIAL (MR. WHITE) TO OBTAIN HIS RELEASE THROUGH
 SHOP PERSONNEL OFFICE RATHER THAN ON HIS OWN RECOGNIZANCE AS PROVIDED
 FOR IN THE NEGOTIATED AGREEMENT." (HEREINAFTER REFERRED TO AS "ISSUE NO.
 3").  DESPITE THE EXPANSIVE LANGUAGE OF THIS PARAGRAPH, IT IS PLAIN THAT
 RATHER THAN "FURTHER" THE SOLE BASIS FOR THE ALLEGED 16(A)(1), (5) AND
 (8) VIOLATIONS IN THIS PARAGRAPH CONCERNS THE RELEASE THROUGH SHOP
 PERSONNEL, ETC., ALLEGATION.
 
    THE ACTS ALLEGED ABOVE ARE ASSERTED IN EACH INSTANCE TO CONSTITUTE
 VIOLATIONS OF SEC. 16(A)(1), (5) AND (8) OF THE STATUTE.
 
    (A) ISSUE NO. 1.  AS NOTED, THE COMPLAINT ALLEGES THAT RESPONDENT, BY
 ITS ELECTRIC SHOP PRODUCTION SUPERINTENDENT, MR. SPANAGEL, RESTRICTED
 MR. WHITE FROM PERFORMING UNION-RELATED BUSINESS BY ASSIGNING URGENT
 WORK.  HOWEVER, GENERAL COUNSEL STATES AS FOLLOWS:
 
    "THE RESPONDENT ASSERTED AT THE HEARING THAT THE CASE REVOLVED AROUND
 AN IMPROPER DENIAL OF
 
    THE USE OF OFFICIAL TIME IN REPRESENTING THE UNION (TR. 116).  SUCH
 AN ASSERTION REFLECTS A
 
    MISUNDERSTANDING OF THE GENERAL COUNSEL'S CASE AND THE ALLEGATIONS
 SET FORTH IN THE COMPLAINT
 
    . . . THE GENERAL COUNSEL HAS ALLEGED NO SPECIFIC DENIAL OF OFFICIAL
 TIME TO BERNIE WHITE AND
 
    HAS ALLEGED NO ABSOLUTE PREVENTION BY THE RESPONDENT OF WHITE
 PERFORMING REPRESENTATIONAL
 
    FUNCTIONS." (G.C. BRIEF, P. 3) GENERAL COUNSEL'S FURTHER STATEMENT
 THAT:  "THE ALLEGATIONS SPECIFICALLY REFER TO ACTS WHICH INTERFERED WITH
 THOSE RIGHTS AND CURTAILED WHITE'S EXERCISE OF THOSE RIGHTS.  THE
 PROHIBITED ACTION IS THE INTERFERENCE WITH CARRYING OUT REPRESENTATION
 RIGHTS AND DUTIES" (G.C. BRIEF P. 3), WHILE CONSISTENT WITH GENERAL
 COUNSEL'S THEORY AS TO ISSUES 2 AND 3, SUCH FURTHER STATEMENT IS WHOLLY
 INCONSISTENT WITH ISSUE NO. 1 AND GENERAL COUNSEL'S STATEMENT THAT NO
 SPECIFIC DENIAL OF OFFICIAL TIME TO BERNIE WHITE IS ALLEGED.  THAT IS,
 ISSUE NO. 1 IS AN AFFIRMATIVE ALLEGATION THAT RESPONDENT DID RESTRICT
 MR. WHITE FROM PERFORMING UNION-RELATED BUSINESS BY ASSIGNING URGENT
 WORK, WHICH GENERAL COUNSEL, IN HIS BRIEF, STATES WAS NOT ALLEGED.
 MOREOVER, ALLEGATIONS ASIDE, THE RECORD AFFIRMATIVELY SHOWS:  (A) THAT
 MR. WHITE NEVER HAD DIFFICULTY IN OBTAINING HIS RELEASE FOR APPROPRIATE
 UNION MANAGEMENT BUSINESS;  (B) THAT MR. WHITE SPENT MORE THAN HALF HIS
 TIME ON UNION-RELATED BUSINESS ON OFFICIAL TIME (RES. EXHS. 1, 10, 12
 AND 15);  AND (C) THAT ON THE FEW INSTANCES WHEN MR. WHITE COULD NOT BE
 RELEASED IMMEDIATELY AT THE TIME REQUESTED, A MUTUALLY SATISFACTORY TIME
 WAS AGREED UPON.  MR. WHITE DID NOT TESTIFY AND THE RECORD IS DEVOID OF
 EVIDENCE THAT RESPONDENT EVER RESTRICTED MR. WHITE FROM PERFORMING
 UNION-RELATED BUSINESS EVEN IF IT WERE ASSUMED THAT IT DID ASSIGN HIM TO
 URGENT WORK.  THERE IS NO QUESTION THAT GROUP SUPERINTENDENT MARTIN WAS
 CONCERNED ABOUT WHAT HE PERCEIVED TO BE MR. WHITE'S EXCESSIVE USE OF
 OFFICIAL TIME FOR UNION-RELATED ACTIVITY (SUBSTANTIALLY MORE THAN FOR
 ALL OTHER STEWARDS COMBINED), SO MUCH SO, THAT ON JANUARY 31, 1979, HE
 ISSUED A LETTER OF REQUIREMENT TO MR. SPANAGEL DIRECTING HIM "TO CURTAIL
 THE EXCESSIVE AMOUNT OF TIME SPENT ON EMPLOYEE-MANAGEMENT BUSINESS BY
 MR.  B. W. WHITE . . . " (G.C. EXH. 2).  EVEN IF MR. SPANAGEL HAD DONE
 SO, AND THIS WAS DENIED, NEVERTHELESS, IN THE ABSENCE OF ANY EVIDENCE
 SHOWING THAT RESPONDENT RESTRICTED MR. WHITE FROM PERFORMING
 UNION-RELATED BUSINESS, THE ALLEGATIONS IN PARAGRAPH 6(A) OF THE
 COMPLAINT IN CASE NO. 3-CA-150 (ISSUE NO. 1) MUST BE DISMISSED FOR
 FAILURE OF PROOF OF ANY INTERFERENCE WITH MR. WHITE'S PERFORMANCE OF
 UNION-RELATED BUSINESS.  ACCORDINGLY, THE ALLEGATIONS IN PARAGRAPH 6(A)
 OF THE COMPLAINT IN CASE NO. 3-CA-150 ARE HEREBY DISMISSED AS GENERAL
 COUNSEL HAS FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE, PURSUANT
 TO SEC. 2423.17 OF THE REGULATIONS, THE ALLEGATIONS OF THIS PARAGRAPH,
 NAMELY THAT RESPONDENT RESTRICTED A UNION OFFICIAL, MR. WHITE, FROM
 PERFORMING UNION-RELATED BUSINESS.
 
    (B) ISSUE NO. 2.  AS NOTED, THE COMPLAINT ALLEGES THAT SUPERVISOR
 NEWBY REQUIRED MR. WHITE TO GIVE 24 HOURS NOTICE BEFORE BEING PERMITTED
 TO CONDUCT UNION-RELATED BUSINESS.
 
    MR. WHITE DID NOT TESTIFY AND MR. NEWBY'S TESTIMONY SHOWS THAT:  (A)
 IN MID-APRIL 1979, HE CALLED THE ADMINISTRATIVE OFFICER, MS. ALLEN, AND
 REQUESTED THAT IN THE FUTURE HE "RECEIVE AS MUCH NOTICE AS POSSIBLE ON
 ANY MEETINGS THAT MR. WHITE ATTENDED AND I WOULD LIKE TO HAVE AT LEAST
 AT A MINIMUM OF 24 HOURS NOTICE FOR ANY OF HIS UNION ACTIVITIES;" (B)
 SHE SO ADVISED ALL PARTIES, INCLUDING CAPTAIN KURZENHAUSER, THE SHOP
 GROUP SUPERINTENDENT AND THE UNION;  (C) HE PERSONALLY CALLED MR.
 NARDOZI, A MEMBER OF THE UNION'S CONFERENCE COMMITTEE (SEE E.G., G.C.
 EXH. 4), WHOM HE HAD KNOWN FOR SEVERAL YEARS, AND ADVISED HIM OF THE
 NOTICE REQUEST;  (D) SUCH NOTIFICATION WAS GENERALLY NOT REQUESTED
 UNLESS IT INVOLVED MR. WHITE LEAVING THE AREA;  AND (E) MR.  WHITE WAS
 RELEASED WHEN SUCH NOTICE HAD NOT BEEN GIVEN.  THE RECORD FURTHER SHOWS
 THAT REQUESTS FOR RELEASE OF MR. WHITE BY MR. NEWBY FELL INTO TWO
 CATEGORIES:  FIRST, CALLS FROM OUTSIDE THE UNIT, WHICH WERE CLEARED
 THROUGH THE ADMINISTRATIVE OFFICE;  AND SECOND, DIRECT REQUESTS MADE TO
 MR.  NEWBY BY MR. WHITE, OR BY OTHERS.  AS TO THE LATTER, MR. NEWBY
 ACTED ON SUCH REQUESTS WITHOUT REGARD TO PRIOR NOTIFICATION.  MR. NEWBY
 TESTIFIED, WITHOUT CONTRADICTION, THAT IF 24 HOURS NOTICE WAS NOT GIVEN,
 SUCH FACT WAS NEVER A BASIS FOR REFUSAL TO RELEASE MR. WHITE /6/ AND,
 FURTHER, THAT MR. WHITE WAS NEVER DENIED TIME TO ATTEND TO UNION-RELATED
 BUSINESS, WHICH IS SUPPORTED BY THE NUMEROUS PASSES ISSUED BY MR. NEWBY
 (RES. EXH. 10).
 
    ARTICLE 7, SECTION 4B OF THE PARTIES' AGREEMENT (G.C. EXH. 7)
 PROVIDES, IN PART, THAT "REASONABLE TIME OFF THE JOB . . . WILL BE
 GRANTED COUNCIL STEWARDS, CHIEF STEWARDS, OR CONFERENCES COMMITTEE
 MEMBERS . . . " ARTICLE 7, SECTION 5B PROVIDES, IN PART, THAT, "A
 COUNCIL STEWARD . . . SHALL FIRST OBTAIN APPROVAL FROM HIS IMMEDIATE
 SUPERVISOR.  IF THE REQUIREMENTS OF THE JOB, IN THE JUDGMENT OF THE
 SUPERVISOR, ARE SUCH THAT THE REPRESENTATIVE CANNOT BE EXCUSED AT THE
 TIME REQUESTED, HE SHALL BE RETAINED IN A WORK STATUS.  HOWEVER, THE
 SUPERVISOR WILL ARRANGE FOR MUTUALLY ACCEPTABLE TIME FOR THE
 REPRESENTATIVE TO ACCOMPLISH THE EMPLOYER/COUNCIL BUSINESS . . . " THE
 ONLY REFERENCE TO "ADEQUATE ADVANCE NOTICE" APPEARS IN THE CONCLUDING
 PARENTHETICAL SENTENCE OF ARTICLE 7, SECTION 5B AND IS DIRECTIVE TO THE
 INDUSTRIAL RELATIONS OFFICE WITH REGARD TO FORMAL HEARINGS.  ALTHOUGH
 THE AGREEMENT CONTAINS NO REQUIREMENT FOR ADVANCE NOTICE AND UNILATERAL
 INSTITUTION OF SUCH A REQUIREMENT BY RESPONDENT WOULD SUPPORT AN UNFAIR
 LABOR PRACTICE, THE MERE REQUEST BY MR. NEWBY THAT HE RECEIVE 24 HOURS
 NOTICE, EVEN IF COMPLIED WITH, DOES NOT CONSTITUTE AN UNFAIR LABOR
 PRACTICE SINCE THE RECORD SHOWS THAT ADVANCE NOTICE WAS REQUESTED, BUT
 NOT REQUIRED;  THAT RELEASE OF MR. WHITE WAS NEVER DENIED FOR FAILURE TO
 GIVE ADVANCE NOTICE;  AND THAT MR. WHITE WAS RELEASED WHEN NO ADVANCE
 NOTICE HAD BEEN GIVEN.  NEITHER MR. WHITE OR ANY OTHER UNION OFFICIAL,
 INCLUDING MR. NARDOZI, TESTIFIED;  MR. NEWBY'S TESTIMONY WAS NOT
 CONTRADICTED;  AND THE RECORD AFFIRMATIVELY SHOWS THAT MR. NEWBY DID NOT
 REQUIRE 24 HOURS NOTICE BEFORE PERMITTING MR. WHITE TO CONDUCT
 UNION-RELATED BUSINESS.  ACCORDINGLY, THE ALLEGATIONS IN PARAGRAPH 6(C)
 OF THE COMPLAINT IN CASE NO. 3-CA-150 ARE HEREBY DISMISSED AS GENERAL
 COUNSEL HAS FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE, PURSUANT
 TO SEC. 2423.17 OF THE REGULATIONS, THE ALLEGATIONS OF THIS PARAGRAPH,
 NAMELY THAT RESPONDENT REQUIRED 24 HOURS NOTICE BEFORE PERMITTING MR.
 WHITE TO CONDUCT UNION-RELATED BUSINESS.
 
    (C) ISSUE NO. 3.  AS NOTED, THE COMPLAINT IN CASE NO. 3-CA-526
 ALLEGES THAT RESPONDENT INSTRUCTED MR. WHITE TO OBTAIN HIS RELEASE
 THROUGH THE SHOP PERSONNEL OFFICE RATHER THAN ON HIS OWN RECOGNIZANCE AS
 PROVIDED FOR IN THE NEGOTIATED AGREEMENT.
 
    FROM MR. SPANAGEL'S TESTIMONY, THE PRACTICE PRIOR TO HIS COMING TO
 SHOP 51, WHICH WAS ALSO FOLLOWED THEREAFTER, WAS, AND IS, THAT REQUESTS
 TO RELEASE A STEWARD OR CHIEF STEWARD COME THROUGH THE ADMINISTRATIVE
 STAFF;  AND/OR THE STEWARD OR CHIEF STEWARD CALLS THE PERSONNEL OFFICE
 FOR CONFIRMATION OF SPECIFIC MEETINGS.  ARTICLE 7, SECTION 5C OF THE
 PARTIES' AGREEMENT PROVIDES THAT, "IF THE COUNCIL STEWARD MUST LEAVE THE
 WORK AREA, HE WILL ALSO CONTACT THE SUPERVISOR IN THE AREA TO BE VISITED
 TO OBTAIN PERMISSION AND ASSURE THE AVAILABILITY OF THE EMPLOYEE (S) TO
 BE CONTACTED BEFORE LEAVING HIS WORK SITE . . . " FORM MR. NEWBY'S
 TESTIMONY, IT IS APPARENT THAT THE ADMINISTRATIVE OFFICE DID "CLEAR"
 SUCH REQUESTS WITH THE SUPERVISOR IN THE AREA TO BE VISITED TO THE
 EXTENT THAT A DEFINITE TIME FOR THE REQUESTED MEETING WAS GIVEN TO MR.
 NEWBY;  HOWEVER, IT WAS MR. NEWBY'S RESPONSIBILITY TO APPROVE THE
 RELEASE OF MR. WHITE AT THE TIMES REQUESTED.  OF COURSE, WHEN REQUESTS
 WERE MADE DIRECTLY TO MR. NEWBY, HE WAS RESPONSIBLE FOR "CLEARING" WITH
 THE OTHER SUPERVISOR.  TO AN EXTENT, A PART OF THE RESPONSIBILITY
 IMPOSED BY ARTICLE 7, SECTION 5C OF THE AGREEMENT ON THE STEWARD TO
 CONTACT THE SUPERVISOR IN THE AREA TO BE VISITED "TO OBTAIN PERMISSION
 AND ASSURE THE AVAILABILITY OF THE EMPLOYEE (S) TO BE CONTACTED" MAY
 HAVE BEEN PERFORMED BY THE ADMINISTRATIVE OFFICE AND/OR HIS SUPERVISOR;
 BUT WITH MR. WHITE'S CONSENT AND AT HIS REQUEST (SEE, FOR EXAMPLE, TR.
 144, 219).
 
    THE RECORD FIRMLY SHOWS THAT THE PROCEDURE HAD LONG BEEN THAT
 REQUESTS FOR RELEASE OF STEWARDS WERE CHANNELLED THROUGH THE
 ADMINISTRATIVE STAFF;  THAT THE ADMINISTRATIVE OFFICE PERFORMED A
 SECRETARIAL OR MINISTERIAL FUNCTION;  AND THAT THE ADMINISTRATIVE OFFICE
 WAS WITHOUT AUTHORITY OR APPROVE, OR DISAPPROVE, REQUESTS FOR RELEASE OF
 STEWARDS.  NEVERTHELESS, THERE IS NO DOUBT THAT MR. WILLARD H. BARBER,
 FOREMAN ELECTRICIAN, SUBMARINES, SHORTLY AFTER MR. WHITE WAS ASSIGNED TO
 HIM ON JULY 14, 1979, REFUSED TO RELEASE MR. WHITE TO CONDUCT UNION
 BUSINESS BECAUSE THE REQUEST HAD NOT COME THROUGH THE SHOP PERSONNEL
 OFFICE.  BY INFERENCE, IT IS APPARENT THAT MR. BARBER EQUATED REQUEST BY
 THE SHOP PERSONNEL OFFICE AS APPROVAL FOR RELEASE.  MR.  BARBER WAS IN
 ERROR;  /8/ HE WITHDREW HIS INSTRUCTION IMMEDIATELY THEREAFTER AND MR.
 WHITE WAS, IN FACT, RELEASED;  AND HE WAS INSTRUCTED THE FOLLOWING DAY,
 IN A MEETING WITH MESSRS. SPANAGEL, ANDREW JAMES (HEAD OF EMPLOYEE
 RELATIONS DIVISION), AND MAGOWEN, "THAT MR. WHITE DID HAVE THE RIGHT TO
 GO ON HIS OWN RECOGNIZANCE WHICH I WORKED WITH HIM AS CLOSE AS POSSIBLE
 FROM NOW (SIC) ON OUT." (TR. 170-171)
 
    WHETHER "HIS OWN RECOGNIZANCE" REFERS TO ARTICLE 7, SECTION 3, "IT IS
 AGREED AND UNDERSTOOD THAT ALL COUNCIL REPRESENTATIVES, I.E., CONFERENCE
 COMMITTEE MEMBERS, CHIEF STEWARDS, AND STEWARDS WILL BE ALLOWED TO VISIT
 THE COUNCIL'S OFFICE TO CONDUCT APPROPRIATE EMPLOYER/COUNCIL BUSINESS;"
 TO ARTICLE 7, SECTION 5C "IF THE COUNCIL STEWARD MUST LEAVE THE WORK
 AREA, HE WILL ALSO CONTACT THE SUPERVISOR IN THE AREA TO BE VISITED TO
 OBTAIN PERMISSION AND ASSURE THE AVAILABILITY OF THE EMPLOYEE(S) TO BE
 CONTACTED BEFORE LEAVING HIS WORK SITE.  PERMISSION WILL NORMALLY BE
 GRANTED UNLESS IN THE OPINION OF EITHER OF THE SUPERVISORS CONCERNED,
 WORK REQUIREMENTS DO NOT PERMIT . . .;" TO ARTICLE 7, SECTION 5E, ". . .
 THE CHIEF STEWARD OR COUNCIL CONFERENCE COMMITTEE MEMBER IS PERMITTED TO
 LEAVE HIS JOB TO TAKE CARE OF EMPLOYER/COUNCIL BUSINESS .  . ." AND/OR
 TO ALL OF THE ABOVE PROVISIONS OF ARTICLE 7, THERE CAN BE NO DOUBT, AS
 MR. JAMES TESTIFIED, THAT MR. WHITE HAD THE RIGHT TO GO ON HIS OWN
 RECOGNIZANCE, I.E., HE COULD VISIT THE COUNCIL'S OFFICE TO CONDUCT
 APPROPRIATE EMPLOYER/COUNCIL BUSINESS, OR LEAVE THE WORK AREA TO TAKE
 CARE OF EMPLOYER/COUNCIL BUSINESS;  BUT, NEVERTHELESS, A COUNCIL
 REPRESENTATIVE MUST OBTAIN APPROVAL FROM HIS IMMEDIATE SUPERVISOR BEFORE
 LEAVING HIS JOB.  IT WAS WELL ESTABLISHED UNDER EXECUTIVE ORDER 11491,
 AS AMENDED, THAT THE USE OF OFFICIAL TIME FOR THE CONDUCT OF UNION
 BUSINESS WAS NOT AN INHERENT MATTER OF RIGHT UNDER THE EXECUTIVE ORDER.
 DEPARTMENT OF THE AIR FORCE, BASE PROCUREMENT OFFICE, VANDENBERG AIR
 FORCE BASE, CALIFORNIA, A/ALMR NO. 485, 5 A/SLMR 112 (1975), SEE ALSO,
 FLRC NO. 75A-25, 4 FLRC 586 (1976).  NOR DOES SEC. 14 OF THE STATUTE
 CREATE ANY INHERENT RIGHT TO THE USE OF OFFICIAL TIME FOR THE CONDUCT OF
 UNION BUSINESS.  TO THE CONTRARY, SEC. 31 OF THE STATUTE GOVERNS THE USE
 OF OFFICIAL TIME AND SUBSECTION (D) PROVIDES AS FOLLOWS:
 
    "(D) EXCEPT AS PROVIDED IN THE PRECEDING SUBSECTIONS OF THIS
 SECTION--
 
    (1) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE, OR
 
    (2) IN CONNECTION WITH ANY OTHER MATTER COVERED BY THIS CHAPTER, ANY
 EMPLOYEE IN AN
 
    APPROPRIATE UNIT REPRESENTED BY AN EXCLUSIVE REPRESENTATIVE,
 
    SHALL BE GRANTED OFFICIAL TIME IN ANY AMOUNT THE AGENCY AND THE
 EXCLUSIVE REPRESENTATIVE
 
    INVOLVED AGREE TO BE REASONABLE, NECESSARY, AND IN THE PUBLIC
 INTEREST." (5 U.S.C. 7131(D)).  THIS, IN TURN, UNDERSCORES COMPLETE
 CONGRESSIONAL AGREEMENT WITH THE STATEMENT OF THE ASSISTANT SECRETARY IN
 VANDENBERG, SUPRA, THAT " . . . THE ORDER (NOW STATUTE) DOES NOT
 PRECLUDE AN AGENCY OR ACTIVITY AND AN EXCLUSIVE REPRESENTATIVE FROM
 ENTERING WITH AN AGREEMENT WITH RESPECT TO THE USE OF OFFICIAL TIME . .
 . " (5 A/SLMR AT 113).  INDEED, SEC. 31(D) SPECIFICALLY SO PROVIDES.
 
    AS SEC. 14 CREATES NO INHERENT RIGHT TO THE USE OF OFFICIAL TIME,
 ONLY INTERFERENCE WITH A REPRESENTATION RIGHT GRANTED BY SEC. 14 WOULD
 SUPPORT A VIOLATION IN SEC. 16(A)(8).  THE ALLEGATION OF PARAGRAPH 6 OF
 THE COMPLAINT IN CASE NO. 3-CA-526 IS THAT RESPONDENT IMPLEMENTED A
 UNILATERAL CHANGE, CONTRARY TO THE AGREEMENT OF ITS PARTIES, BY
 INSTRUCTING MR.  WHITE TO OBTAIN HIS RELEASE THROUGH THE SHOP PERSONNEL
 OFFICE.  THE ALLEGATION WOULD CONSTITUTE A VIOLATION OF SEC. 16(A)(1)
 AND (5), BUT NOT OF SEC. 16(A)(8).
 
    WHILE IT IS CLEAR THAT MR. BARBER'S INSTRUCTION DID, MOMENTARILY,
 CONSTITUTE A UNILATERAL CHANGE OF AN ESTABLISHED CONDITION OF EMPLOYMENT
 AND DID VIOLATE SEC.  16(A)(1) AND (5), IT IS EQUALLY CLEAR THAT:  (A)
 MR. WHITE WAS ONLY MOMENTARILY DELAYED, MR. BARBER TESTIFIED "I FOUND
 OUT BETTER ABOUT TEN MINUTES LATER" (TR. 163), AND MR. WHITE WAS GIVEN
 HIS RELEASE TO CONDUCT UNION-RELATED BUSINESS;  (B) MR. BARBER WAS
 INSTRUCTED THE FOLLOWING DAY BY HIS GROUP SUPERINTENDENT, MR. SPANAGEL,
 AND BY RESPONDENT'S CHIEF OF EMPLOYEE RELATIONS, MR. JAMES, THAT MR.
 WHITE DID HAVE THE RIGHT TO GO ON HIS RECOGNIZANCE;  AND (C) THAT MR.
 BARBER THEREAFTER FULLY COMPLIED (SEE RESPONDENT'S EXHIBIT 12).  AS IT
 IS FURTHER CLEAR TEAT MR. BARBER'S ACT DID NOT REPRESENT RESPONDENT'S
 POLICY, AS WAS MADE CLEAR TO MR. BARBER BY MESSRS. SPANAGEL AND JAMES
 THE FOLLOWING DAY, I CONCLUDE, FOR THE REASONS WELL STATED BY THE
 FEDERAL LABOR RELATIONS COUNCIL, IN VANDENBERG AIR FORCE BASE,
 4392D/AEROSPACE SUPPORT GROUP, VANDENBERG AIR FORCE BASE, CALIFORNIA,
 FLRC NO. 74A-77, 3 FLRC 491 (1975), THAT A FINDING THAT RESPONDENT
 VIOLATED THE STATUTE IS NOT WARRANTED.  IN VANDENBERG, SUPRA, THE
 COUNCIL STATED, IN PART, AS FOLLOWS:
 
    " . . . IT IS EVIDENT THAT THE ACTIVITY'S CONDUCT IN THIS ONE
 INSTANCE WAS OF A DE MINIMIS
 
    NATURE AND THUS IS NOT SUFFICIENT TO CONSTITUTE A FAILURE TO
 NEGOTIATE IN GOOD FAITH IN
 
    VIOLATION OF THE ORDER . . . AN ISOLATED INCIDENT WHICH RESULTS IN
 SUCH A BRIEF INTERRUPTION
 
    SHOULD BE EXAMINED IN THE CONTEXT OF THE TOTALITY OF THE RESPONDENT'S
 BARGAINING CONDUCT FOR A
 
    DETERMINATION AS TO WHETHER IT WOULD EFFECTUATE THE PURPOSE OF THE
 ORDER TO FIND AN VIOLATION
 
    . . . THUS, WE CONCLUDE THAT IN THE INSTANT CASE, WHERE THE
 REPRESENTATIVES OF THE ACTIVITY
 
    CEASED TO ENGAGED IN THE ALLEGED IMPROPER CONDUCT IMMEDIATELY AFTER
 IT OCCURRED . . . A
 
    FINDING THAT THE ACTIVITY VIOLATED THE ORDER IS NOT WARRANTED." (3
 FLRC AT 496).  I AM AWARE THAT VANDENBERG, SUPRA, INVOLVED A MOMENTARY
 INTERRUPTION OF BARGAINING WHILE THE PRESENT CASE INVOLVED A MOMENTARY
 IMPLEMENTATION OF A REQUIREMENT BY A FOREMAN WHO LEARNED OF HIS ERROR
 WITHIN MINUTES AND REVERSED HIS "INSTRUCTION." NEVERTHELESS, IN
 PRINCIPLE, THE TWO SITUATIONS ARE INDISTINGUISHABLE.  THE FLEETING
 VIOLATION WAS CORRECTED IMMEDIATELY AFTER IT OCCURRED, WAS CONTRARY TO
 RESPONDENT'S POLICY, WHICH WAS STRONGLY REAFFIRMED THE FOLLOWING DAY.
 NOT ONLY DO I FIND THE VIOLATION DE MINIMUS UNDER THE CIRCUMSTANCES;
 BUT I FURTHER FIND THAT THE VIOLATION WAS RENDERED MOOT BY MR. BARBER'S
 WITHDRAWAL OF HIS INSTRUCTION IMMEDIATELY AFTER HE ISSUED IT AND BY
 RESPONDENT'S REAFFIRMATION OF ITS POLICY THE FOLLOWING DAY THAT COUNCIL
 REPRESENTATIVES DID HAVE THE RIGHT TO LEAVE ON THEIR OWN RECOGNIZANCE.
 ACCORDINGLY, I SHALL RECOMMEND THAT THE COMPLAINT IN CASE NO. 3-CA-526
 BE DISMISSED.
 
                                CONCLUSION
 
    HAVING FOUND THAT THE ALLEGATIONS CONTAINED IN PARAGRAPH 6(B) OF THE
 COMPLAINT IN CASE NO. 3-CA-150 ARE PRECLUDED FROM CONSIDERATION HEREIN
 BY SEC. 16(D) OF THE STATUTE;  THAT GENERAL COUNCIL HAS FAILED TO PROVE
 BY A PREPONDERANCE OF THE EVIDENCE THE ALLEGATIONS OF PARAGRAPHS 6(A)
 AND (C) OF THE COMPLAINT IN CASE NO. 3-CA-150;  AND THAT THE MOMENTARY
 VIOLATION SHOWN IN CASE NO. 3-CA-526 WAS, AT BEST, DE MINIMUS AND WAS
 RENDERED MOOT BY THE WITHDRAWAL OF THE INSTRUCTION INVOLVED IMMEDIATELY
 AFTER IT WAS ISSUED, IT WOULD NOT EFFECTUATE THE PURPOSES OF THE STATUTE
 TO FIND A VIOLATION OF THE STATUTE.  ACCORDINGLY, I RECOMMEND THAT THE
 COMPLAINTS HEREIN BE DISMISSED IN THEIR ENTIRELY.
 
                            WILLIAM B. DEVANEY
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JUNE 20, 1980
    WASHINGTON, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ IN VIEW OF THE DISPOSITION HEREIN, THE AUTHORITY FINDS IT
 UNNECESSARY TO PASS UPON THE ADMINISTRATIVE LAW JUDGE'S SUGGESTION AS TO
 WHAT OTHER CONDUCT MAY CONSTITUTE A VIOLATION OF SECTION 7116(A)(8) OF
 THE STATUTE.
 
    /2/ FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE STATUTE AND
 HEREINAFTER ALSO REFERRED TO WITHOUT INCLUSION OF THE INITIAL "71,"
 E.G., SEC. 7116(A)(1) SIMPLY AS "16(A)(1)."
 
    /3/ GENERAL COUNSEL'S EXHIBIT 1(A), THE ORIGINAL CHARGE IN CASE NO.
 3-CA-150, INCLUDED AS ATTACHMENTS CERTAIN GRIEVANCES TO WHICH RESPONDENT
 OBJECTED BECAUSE THE ATTACHMENTS, AND SPECIFICALLY THE GRIEVANCES, HAD
 NOT BEEN ATTACHED TO THE CHARGE SERVED ON RESPONDENT AND COUNSEL FOR
 RESPONDENT HAD NOT HAD ANY PRIOR OPPORTUNITY TO INSPECT THE ATTACHMENTS
 (TR. 7, 9);  GENERAL COUNSEL AGREED TO REMOVE THE ATTACHMENTS;
 RESPONDENT HAD NO OBJECTION TO THE ORIGINAL CHARGE AND IT WAS RECEIVED
 AS GENERAL COUNSEL'S EXHIBIT 1(A).  NOTWITHSTANDING THE STIPULATION OF
 THE PARTIES, THE GRIEVANCES WERE NOT, IN FACT, REMOVED AND STILL APPEAR
 AS PART OF G.C.  EXH. 1(A).  NEVERTHELESS, PURSUANT TO THE AGREEMENT OF
 THE PARTIES AND MY DIRECTION, PURSUANT THERETO, THAT THE GRIEVANCES
 ATTACHED TO G.C. EXH. 1(A) BE REMOVED, THE GRIEVANCES ATTACHED TO G.C.
 EXH. 1(A) WERE NOT RECEIVED AS EXHIBITS, ARE NOT PROPERLY PART OF THE
 RECORD AND WILL NOT BE CONSIDERED FOR ANY PURPOSE IN THIS PROCEEDING.
 
    IN ITS BRIEF, AT P. 15, RESPONDENT APPEARS TO CONTEND THAT ISSUES
 OTHER THAN THE ALLEGATIONS OF PARAGRAPH 6(B) OF THE COMPLAINT IN CASE
 NO. 3-CA-150 ARE PRECLUDED FROM CONSIDERATION HEREIN BY SEC. 16(D) OF
 THE STATUTE.  THUS, RESPONDENT STATES,
 
    "A THRESHOLD CONTENTION BEFORE US RELATES TO RESPONDENT'S POSITION
 THAT THE ISSUES IN THIS
 
    CASE HAVE BEEN RAISED AND EXERCISED THROUGH THE PARTIES NEGOTIATED
 GRIEVANCE PROCEDURES, AND
 
    ARE THEREFORE BARRED
 
    FROM THE INSTANT PROCEDURES BY SECTION 7116(D) OF THE
 
    STATUTE." (RESPONDENT'S BRIEF, P. 15).
 
    TO THE EXTENT THAT THE RECORD SHOWS, OR PURPORTS TO SHOW, THAT A
 GRIEVANCE RAISED THE SAME ISSUE AS SUBSEQUENTLY RAISED IN THE COMPLAINTS
 HEREIN, THE APPLICABILITY OF SEC. 16(D) WILL BE CONSIDERED;  BUT WITHOUT
 REFERENCE TO GRIEVANCES ATTACHED TO G.C. EXH.  1(A) WHICH WERE NOT MADE
 PART OF THE RECORD AND WHICH MAY NOT PROPERLY BE CONSIDERED.  SO FAR AS
 I CAN DETERMINE, THIS MEANS, IN SHORT, ONLY PARAGRAPH 6(B) OF THE
 COMPLAINT IN CASE NO. 3-CA-150.  THIS IMPRESSION IS BORNE OUT BY
 RESPONDENT'S EXHIBITS 7 AND 8;  BY RESPONDENT'S STATEMENTS AT PAGES
 16-17 OF ITS BRIEF;  AND BY GENERAL COUNSEL'S VIEW OF THE ISSUE AS
 STATED AT PAGES 6-8 OF GENERAL COUNSEL'S BRIEF.
 
    /4/ MR. SPANAGEL WAS "CODE 951" AND MS. ALLEN WAS THE ADMINISTRATIVE
 ASSISTANT FOR MR. J.W. MARTIN ("CODE 950") GROUP SUPERINTENDENT FOR THE
 ELECTRICAL-- ELECTRONICS WEAPONS GROUP.
 
    /5/ REFERENCE (A) OF THE APRIL 17, 1979, MEMORANDUM, I.E., THE ".  .
 . WE WILL BE UNABLE TO PERMIT MR. WHITE TO ACT AS ALTERNATE . . . " WAS
 WITHDRAWN MAY 2, 1979 (G.C. EXH. 6).
 
    /6/ INDEED, IT APPEARS FROM THE ENTIRE RECORD THAT MS. ALLEN HAD
 TYPING MR. SPANAGEL'S MEMORANDUM, ALTHOUGH HER ACTION ON APRIL 16, 1979,
 ALMOST CERTAINLY BROUGHT ABOUT MR. BRYAN'S WRITTEN REQUEST OF APRIL 17,
 1979, THAT MR. WHITE BE ALLOWED TO ATTEND A GRIEVANCE MEETING.  THUS, ON
 APRIL 16, 1979, AN ORAL REQUEST HAD BEEN MADE BY MR. BRYAN FOR MR.
 WHITE TO COME TO THE COUNCIL OFFICE FOR A GRIEVANCE MEETING TO WHICH MS.
 ALLEN, AT ABOUT 2:00 P.M., HAD RESPONDED THAT THE REQUEST WAS NOT
 SPECIFIC ENOUGH.  THIS INCIDENT WAS RAISED BY A GRIEVANCE FILED ON APRIL
 16, 1979 (RES. EXH. 8).  ON APRIL 17, 1979, MR. BRYAN MADE A WRITTEN
 REQUEST THAT MR. WHITE ATTEND A GRIEVANCE MEETING AND MR. WHITE WAS IN
 FACT, GRANTED OFFICIAL TIME ON APRIL 17, 1979, FOR THIS PURPOSE.
 
    /7/ I AM AWARE THAT MR. NEWBY DENIED ANNUAL LEAVE REQUESTED BY MR.
 WHITE FOR JUNE 14, 1979 (G.C. EXH. 8), BUT SUCH DENIAL WAS UNRELATED TO
 ADVANCE NOTICE.  INDEED, THE REQUEST WAS MADE ON MAY 25, 1979, AND WAS
 DENIED ON JUNE 6, 1979.  I AM ALSO AWARE THAT ON JULY 2, 1979, MR. NEWBY
 DENIED TIME REQUESTED BY MR. WHITE TO MAKE LONG DISTANCE TELEPHONE CALLS
 (G.C. EXH. 9);  BUT AGAIN, THE DENIAL WAS UNRELATED TO ADVANCE NOTICE
 (G.C. EXHS. 9, 10, TR.  135-137);  AN ALTERNATE TIME WAS SUGGESTED BY
 MR. NEWBY;  AND IT APPEARS THAT MR. WHITE WAS GIVEN TIME FOR THIS
 PURPOSE ON JULY 5, 1979 (RES. EXH. 10).
 
    /8/ I AM AWARE THAT MR. BARBER STATED IN AN AFFIDAVIT THAT HIS
 GENERAL FOREMAN, JARVIS WHITE, INSTRUCTED HIM NOT TO RELEASE MR. WHITE
 ON HIS OWN RECOGNIZANCE (TR.  167, 168-169), WHICH STATEMENT BE CHANGED
 IN HIS TESTIMONY (TR. 165, 168, 1969);  AND THAT MR. JARVIS WHITE, WHILE
 DENYING THAT THE WORD "RECOGNIZANCE" WAS NEVER USED, TESTIFIED THAT HE
 TOLD MR. BARBER THAT MEETINGS AWAY FROM THE SHOP WOULD BE SET UP THROUGH
 SHOP PERSONNEL (TR. 190).