Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire (Respondent) and International Federation of Professional and Technical Engineers, Local 4, AFL-CIO (Charging Party)

 5 FLRA No. 48
 
 DEPARTMENT OF THE NAVY
 PORTSMOUTH NAVAL SHIPYARD
 PORTSMOUTH, NEW HAMPSHIRE
 Respondent
 
 and
 
 INTERNATIONAL FEDERATION OF
 PROFESSIONAL AND TECHNICAL
 ENGINEERS, LOCAL 4, AFL-CIO
 Charging Party
 
                                            Case No. 1-CA-58
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
 HIS DECISION AND ORDER FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN
 THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING
 THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.  THEREAFTER, THE
 GENERAL COUNSEL FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S
 DECISION AND ORDER, AND A SUPPORTING BRIEF.
 
    THEREFORE, 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 DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE, INCLUDING
 THE EXCEPTIONS AND SUPPORTING BRIEF OF THE GENERAL COUNSEL, THE
 AUTHORITY CONTRARY TO THE ADMINISTRATIVE LAW JUDGE FINDS THAT THE
 RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE WHEN IT
 ISSUED INSTRUCTION 9094.2 ON MAY 18, 1979.  THE ADMINISTRATIVE LAW
 JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION ARE ADOPTED ONLY TO THE
 EXTENT CONSISTENT HEREWITH.
 
    THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(1) AND (5) OF THE STATUTE BY UNILATERALLY ELIMINATING WITHOUT
 NOTICE TO THE UNION THE ESTABLISHED PAST PRACTICE OF ALLOWING THE
 SUPERVISORS THE DISCRETION, WHEN REQUESTED BY AN EMPLOYEE, OF GRANTING
 LEAVE WITHOUT PAY (LWOP) TO EMPLOYEES WHO HAD REACHED THE MAXIMUM
 ALLOWABLE PAY FOR A PAY PERIOD ("MAXING OUT"), AND FURTHER VIOLATED THE
 STATUTE BY FAILING TO BARGAIN ON THE IMPLEMENTATION OR IMPACT OF THE
 CHANGE.  IT WAS ALLEGED THE RESPONDENT CHANGED THE PAST PRACTICE WHEN IT
 ISSUED INSTRUCTION 9094.2 ON MAY 18, 1979, WHICH SPECIFICALLY STATED:
 "LEAVE WITHOUT PAY WILL NOT BE GRANTED" TO EMPLOYEES WHO HAD REACHED THE
 MAXIMUM ALLOWABLE EARNINGS FOR A PAY PERIOD.
 
    THE ADMINISTRATIVE LAW JUDGE RECOMMENDED DISMISSAL OF THE COMPLAINT.
 IN REACHING THIS CONCLUSION, HE FOUND THAT WHEN INSTRUCTION 9094.2 WAS
 ISSUED, NO SUCH ESTABLISHED PRACTICE EXISTED.  IN THIS REGARD THE
 ADMINISTRATIVE LAW JUDGE NOTED THAT ALTHOUGH AN EARLIER INSTRUCTION,
 ISSUED IN 1973, DECLARED THAT ALLOWING LWOP WAS DISCRETIONARY, AT LEAST
 SINCE 1978, MANAGEMENT DID NOT ACKNOWLEDGE SUCH LEAVE IN "MAXED OUT"
 SITUATIONS AND INFORMED ITS SUPERVISORY PERSONNEL ACCORDINGLY.  THERE IS
 NO EVIDENCE IN THE RECORD THAT THE UNION KNEW OF RESPONDENT'S EFFORT TO
 RESIST THE GRANTING OF SUCH LWOP BY COMMUNICATING ITS REJECTION OF SUCH
 A PRACTICE TO ITS SUPERVISORY PERSONNEL.  THE ADMINISTRATIVE LAW JUDGE
 NOTED, "IT MAY WELL BE THAT MANAGEMENT'S ACTION IN 1978 WAS UNILATERAL
 IN NATURE AND GAVE RISE TO AN UNFAIR LABOR PRACTICE CHARGE AT THAT
 TIME," BUT THAT MATHER WAS NOT BEFORE HIM.  HE ALSO FOUND THAT CERTAIN
 SUPERVISORS CONTINUED TO GRANT LWOP AT THEIR DISCRETION UP UNTIL THE
 TIME THE INSTRUCTION WAS ISSUED IN MAY 1979.  HOWEVER, IN HIS VIEW, THE
 ADOPTION OF SUCH PRACTICE BY TWO SUPERVISORS WAS NOT TANTAMOUNT TO ITS
 ESTABLISHMENT AS A CONDITION OF EMPLOYMENT.
 
    THE AUTHORITY FINDS, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE,
 THAT A PRACTICE OF GRANTING LWOP AT THE DISCRETION OF SUPERVISORS
 EXISTED, FROM AT LEAST 1973, UP TO 1978.  CONTRARY TO THE ADMINISTRATIVE
 LAW JUDGE, HOWEVER, THE AUTHORITY FINDS THAT SUCH PRACTICE WAS NOT
 EFFECTIVELY DISCONTINUED IN 1978.  RATHER, WHATEVER ATTEMPT WAS MADE BY
 THE ACTIVITY TO END THE PRACTICE IN 1978 WAS NOT COMMUNICATED TO THE
 UNION, NOR WAS IT EVER MADE CLEAR TO MANAGEMENT'S OWN SUPERVISORS.
 INDEED, THE PRACTICE WAS NOT DISCONTINUED BY ALL SUPERVISORS, AND THE
 UNION HAD NO KNOWLEDGE OF ANY MANAGEMENT ATTEMPT TO CHANGE THE PAST
 PRACTICE UNTIL THE UNION WAS FURNISHED WITH A DRAFT OF THE INSTRUCTION
 ON MAY 4, 1979.  ACCORDINGLY, IT IS CONCLUDED THAT THE PAST PRACTICE OF
 THE SUPERVISORS HAVING THE DISCRETION TO GRANT LWOP WAS CHANGED BY THE
 RESPONDENT WHEN IT ISSUED INSTRUCTION 9094.2 ON MAY 18, 1979.
 
    IN VIEW OF HIS DISPOSITION IT WAS UNNECESSARY FOR THE ADMINISTRATIVE
 LAW JUDGE TO PASS UPON THE RESPONDENT'S DEFENSES.  AS THE AUTHORITY HAS
 FOUND THAT THE PRACTICE CONTINUED THROUGH MAY 18, 1979, IT REMAINS
 UNNECESSARY TO PASS UPON THE RESPONDENT'S CONTENTION THAT THE UNION
 WAIVED ITS RIGHT TO NEGOTIATE ON THE QUESTION OF LWOP BY BARGAINING ON
 THE SUBJECT DURING CONTRACT NEGOTIATIONS IN 1978.
 
    THE RESPONDENT ARGUES ALSO THAT THE SUBJECT OF GRANTING LWOP TO
 EMPLOYEES UNDER THE CIRCUMSTANCES IS NONNEGOTIABLE BECAUSE IT IS BOTH
 ILLEGAL (UNDER 5 U.S.C. 5546 AND 6101(C)) AND CONTRARY TO A
 GOVERNMENT-WIDE REGULATION (U.S. CIVIL SERVICE COMMISSION, FEDERAL
 PERSONNEL MANUAL SUPP. 990-2, CHAPTER 630, SUBCHAPTER S12-2 (1969)).  IN
 THIS REGARD IT IS ASSERTED THAT THE GRANTING OF LWOP WOULD, UNDER
 CERTAIN CIRCUMSTANCES, RESULT IN EARNINGS LEVELS WHICH EXCEED THAT
 PERMITTED UNDER CITED LAW AND REGULATION.  IN THE AUTHORITY'S VIEW SUCH
 ASSERTION IS NOT A DEFENSE TO THE ALLEGATIONS AT ISSUE HEREIN, THAT IS,
 THAT THE AGENCY UNILATERALLY ELIMINATED AN ESTABLISHED PAST PRACTICE
 WITH RESPECT TO THE GRANTING OF LWOP.  OF COURSE, ANY AGREED UPON PAY
 PRACTICE MUST BE CONSONANT WITH APPROPRIATE LAW AND REGULATION.
 
    AS TO ITS OTHER DEFENSES, THE RESPONDENT HAS NOT ESTABLISHED THAT THE
 NEGOTIATIONS OF MAY 1979, REGARDING INSTRUCTION 9094.2, HAD REACHED
 IMPASSE, AS THE RECORD REVEALS NEGOTIATIONS WERE LIMITED IN SCOPE AND
 WERE NOT COMPLETED WHEN THE RESPONDENT ISSUED THE SUBJECT INSTRUCTION.
 THUS, THE RESPONDENT DID NOT FURNISH THE UNION WITH ITS FINAL VERSION OF
 THE INSTRUCTION UNTIL AFTER IT WAS SIGNED.  FINALLY, AS TO THE
 RESPONDENT'S ARGUMENT THAT THE MATTER WAS SUBJECT TO CONTRACT
 INTERPRETATION AND THUS SHOULD BE DEFERRED TO ARBITRATION, THE AUTHORITY
 NOTES THE AGREEMENT LANGUAGE DOES NOT ADDRESS THE SUBJECT MATTER
 INVOLVED HEREIN.  /1/
 
    IN VIEW OF THE FOREGOING, THE AUTHORITY FINDS THAT THE RESPONDENT
 VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE WHEN IT ISSUED
 INSTRUCTION 9094.2 ON MAY 18, 1979, BY ITS FAILURE TO NEGOTIATE ABOUT
 THE CHANGED CONDITION OF EMPLOYMENT.
 
    HAVING FOUND THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF
 THE STATUTE WHEN IT ISSUED INSTRUCTION 9094.2 UNILATERALLY CHANGING A
 PAST PRACTICE REGARDING THE GRANTING OF LWOP AND FAILING TO BARGAIN IN
 GOOD FAITH OVER THE CHANGE AND ITS IMPACT ON UNIT EMPLOYEES, THE
 RESPONDENT WILL BE REQUIRED TO CEASE AND DESIST FROM SUCH CONDUCT, AND
 POST AN APPROPRIATE NOTICE.
 
                                 ORDER /2/
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
 AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF THE NAVY, PORTSMOUTH
 NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INSTITUTING CHANGES IN THE ESTABLISHED PROCEDURE OF LEAVING THE
 GRANTING OF LEAVE WITHOUT PAY TO THE ADMINISTRATIVE DISCRETION OF THE
 SUPERVISOR WHEN REQUESTED BY AN EMPLOYEE WHO HAS REACHED THE MAXIMUM
 PAY
 ALLOWABLE BY LAW FOR A PAY PERIOD AFTER A SEA TRIAL, WITHOUT FIRST
 NOTIFYING THE INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL
 ENGINEERS, LOCAL 4, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF ITS
 EMPLOYEES, AND AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO
 NEGOTIATE IN GOOD FAITH, TO THE EXTENT CONSONANT WITH LAW, REGULATIONS
 AND THE STATUTE, WITH REGARD TO ANY PROPOSED CHANGES IN SUCH ESTABLISHED
 PRACTICE.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) RESCIND THE CHANGE IN THE ESTABLISHED PROCEDURE OF LEAVING THE
 GRANTING OF LEAVE WITHOUT PAY TO THE ADMINISTRATIVE DISCRETION OF THE
 SUPERVISOR WHEN REQUESTED BY AN EMPLOYEE WHO HAS REACHED THE MAXIMUM
 PAY
 ALLOWABLE BY LAW FOR A PAY PERIOD AFTER A SEA TRIAL AS IMPLEMENTED BY
 INSTRUCTION 9094.2 ISSUED ON MAY 18, 1979.
 
    (B) NOTIFY THE INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL
 ENGINEERS, LOCAL 4, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF ITS
 EMPLOYEES, OF ANY PROPOSED CHANGE IN THE ESTABLISHED PROCEDURE IN THE
 GRANTING OF LEAVE WITHOUT PAY AND, UPON REQUEST, NEGOTIATE IN GOOD
 FAITH, TO THE EXTENT CONSONANT WITH LAW, REGULATIONS AND THE STATUTE, ON
 SUCH INTENDED CHANGES.
 
    (C) POST AT ITS FACILITIES AT THE PORTSMOUTH NAVAL SHIPYARD,
 PORTSMOUTH, NEW HAMPSHIRE, COPIES OF THE ATTACHED NOTICE MARKED
 "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS
 AUTHORITY.  UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
 COMMANDER, PORTSMOUTH NAVAL SHIPYARD AND SHALL BE POSTED AND MAINTAINED
 BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES,
 INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
 EMPLOYEES ARE CUSTOMARILY POSTED.  REASONABLE STEPS SHALL BE TAKEN BY
 RESPONDENT TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR
 COVERED BY ANY OTHER MATERIAL.
 
    (D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION I, 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., MARCH 20, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                                 APPENDIX
 
        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 INSTITUTE CHANGES IN THE ESTABLISHED PROCEDURE OF LEAVING
 THE GRANTING OF LEAVE WITHOUT PAY TO THE ADMINISTRATIVE DISCRETION OF
 THE SUPERVISOR WHEN REQUESTED BY ANY EMPLOYEE WHO HAS REACHED THE
 MAXIMUM PAY ALLOWABLE BY LAW FOR A PAY PERIOD AFTER A SEA TRIAL WITHOUT
 FIRST NOTIFYING THE INTERNATIONAL FEDERATION OF PROFESSIONAL AND
 TECHNICAL ENGINEERS, LOCAL 4, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF
 OUR EMPLOYEES, AND AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO
 NEGOTIATE IN GOOD FAITH, TO THE EXTENT CONSONANT WITH LAW, REGULATIONS
 AND THE STATUTE, WITH REGARD TO ANY PROPOSED CHANGES IN SUCH ESTABLISHED
 PRACTICE.
 
    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
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL RESCIND THE CHANGE IN THE ESTABLISHED PROCEDURE OF LEAVING
 THE GRANTING OF LEAVE WITHOUT PAY TO THE ADMINISTRATIVE DISCRETION OF
 THE SUPERVISOR WHEN REQUESTED BY AN EMPLOYEE WHO HAS REACHED THE
 MAXIMUM
 PAY ALLOWABLE BY LAW FOR A PAY PERIOD AFTER A SEA TRIAL AS IMPLEMENTED
 BY INSTRUCTION 9094.2 ISSUED ON MAY 18, 1979.
 
    WE WILL NOTIFY THE INTERNATIONAL FEDERATION OF PROFESSIONAL AND
 TECHNICAL ENGINEERS, LOCAL 4, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF
 OUR EMPLOYEES, OF ANY PROPOSED CHANGE IN THE ESTABLISHED PROCEDURE IN
 THE GRANTING OF LEAVE WITHOUT PAY AND, UPON REQUEST, NEGOTIATE IN GOOD
 FAITH, TO THE EXTENT CONSONANT WITH LAW, REGULATIONS AND THE STATUTE, ON
 SUCH INTENDED CHANGES.
 
    DATED:
 
                                   BY:
 
   (SIGNATURE)                   COMMANDER, PORTSMOUTH
 
 
                             NAVAL SHIPYARD.
 
    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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE
 ADDRESS IS:  441 STUART STREET, 9TH FLOOR, BOSTON, MA 02116, AND WHOSE
 TELEPHONE NUMBER IS (617) 223-0920.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    A. GENE NIRO, ESQUIRE
    FOR THE RESPONDENT
 
    RICHARD BLAZER, ESQUIRE
    RICHARD D. ZAIGER, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    BEFORE:  WILLIAM NAIMARK
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON JANUARY 31,
 1980 BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
 BOSTON, MASSACHUSETTS REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED
 ON APRIL 10, 1980 AT PORTSMOUTH, NEW HAMPSHIRE.
 
    THIS PROCEEDING AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ. (HEREIN CALLED
 THE ACT).  IT IS BASED ON A FIRST AMENDED CHARGE FILED ON JANUARY 21,
 1980 BY INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL
 ENGINEERS, LOCAL 4, AFL-CIO (HEREIN CALLED THE CHARGING PARTY OR UNION)
 AGAINST DEPARTMENT OF NAVY, PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW
 HAMPSHIRE (HEREIN CALLED RESPONDENT).
 
    THE COMPLAINT AGAINST RESPONDENT ALLEGED, IN SUBSTANCE, THAT
 COMMENCING ON OR ABOUT MAY 18, 1979 THE EMPLOYER REFUSED TO BARGAIN BY:
 (1) UNILATERALLY CHANGING CONDITIONS OF EMPLOYMENT WHEN IT IMPLEMENTED
 INSTRUCTION 9094.2 WITHOUT NOTIFYING THE UNION OR GIVING IT AN
 OPPORTUNITY TO BARGAIN RE THE INSTRUCTION;  (2) UNILATERALLY MAKING SAID
 CHANGE WITHOUT GIVING THE UNION AN OPPORTUNITY TO BARGAIN OVER THE
 IMPLEMENTATION OR IMPACT OF SAID INSTRUCTION ON BARGAINING UNIT
 EMPLOYEES.
 
    A RESPONSE WAS FILED ON FEBRUARY 4, 1980 WHEREIN RESPONDENT DENIED
 THAT IT HAD VIOLATED THE ACT OR COMMITTED ANY UNFAIR LABOR PRACTICES.
 
    BOTH PARTIES WERE REPRESENTED AT THE HEARING.  EACH WAS AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AND WELL AS
 CROSS-EXAMINE WITNESSES.  THEREAFTER BRIEFS WERE FILED WITH THE
 UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
 ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL HEREIN THE UNION HEREIN HAS BEEN, AND STILL
 IS, THE COLLECTIVE BARGAINING REPRESENTATIVE OF THE RESPONDENT'S GRADED
 PROFESSIONAL AND NONPROFESSIONAL TECHNICAL EMPLOYEES IN THE ENGINEERING
 SCIENCES AND ASSOCIATED FIELDS.
 
    2.  BOTH THE UNION AND THE RESPONDENT ARE PARTIES TO A WRITTEN
 COLLECTIVE BARGAINING AGREEMENT, WHICH BY ITS TERMS IS EFFECTIVE FROM
 JULY 20, 1978 UNTIL JULY 20, 1981.
 
    3.  THE AFORESAID AGREEMENT CONTAINED THE FOLLOWING CLAUSE IN ARTICLE
 II, ENTITLED "WAGES" AS FOLLOWS:
 
    "SECTION 5.  WHILE WORKING LONG PERIODS OF OVERTIME, EMPLOYEES WHO
 ARE EXEMPT UNDER THE
 
    FAIR LABOR STANDARDS ACT AND HAVE EXCEEDED THE BIWEEKLY PAY
 LIMITATIONS (TOP STEP GS-15
 
    SALARY) NORMALLY SHOULD NOT BE EXPECTED TO CONTINUE TO WORK
 ADDITIONAL OVERTIME HOURS IF THE
 
    EMPLOYEE CAN BE REPLACED BY ANOTHER EMPLOYEE WHO IS QUALIFIED AND
 AVAILABLE, EXCEPT DURING SEA
 
    TRIALS, OFFSITE WORK, AND OTHER CIRCUMSTANCES THAT REQUIRE THE
 EMPLOYEE'S SERVICES."
 
    4.  AS PART OF THE OPERATIONS PERFORMED AT THE PORTSMOUTH NAVAL
 SHIPYARD, IT IS CUSTOMARY FOR TECHNICIANS AND ENGINEERS TO GO ON SEA
 TRIALS TO ASSURE THAT SUBMARINES ARE SAFE AND CAN CONTINUE TO FUNCTION.
 TESTING OF SUBMARINES IS DONE BOTH BEFORE AND AFTER ANY OVERHAULING WORK
 TAKES PLACE.  BETWEEN 1976-1979 ABOUT 20-24 SEA TRIALS WERE CONDUCTED.
 APPROXIMATELY 30 MEN ARE SENT OUT ON EACH TRIAL, SO THAT ABOUT 720
 INDIVIDUALS WERE ENGAGED IN SEA TRIALS DURING THE AFORESAID PERIOD.
 
    5.  THOSE INDIVIDUALS ON SEA TRIALS, WHO ARE EXEMPT FROM THE FAIR
 LABOR STANDARDS ACT, OFTEN EARN IN A TWO WEEK PERIOD THE MAXIMUM AMOUNT
 OF PAY ALLOWABLE DURING THAT TIME.  THIS RESULTS FROM THE OVERTIME
 EARNED AND THE PERIOD OF EMPLOYMENT.  THE SAID EMPLOYEES COULD THEN BE
 DEEMED TO HAVE "MAXED OUT" SINCE THEY CAN'T EARN MORE THAN THE TOP GRADE
 SALARY (GS-15).  IN SUCH AN INSTANCE THESE INDIVIDUALS, WHO RETURN TO
 THE SHIPYARD FROM THEIR SEA TRIALS, RECEIVE NO ADDITIONAL COMPENSATION
 FOR WORK PERFORMED DURING THE REMAINDER OF THE PAY PERIOD.  THUS, IF
 SAID EMPLOYEES RETURN TO THE YARD ON A TUESDAY AND HAVE "MAXED OUT" FOR
 THESE TWO WEEKS, THEY RECEIVE NO PAY FOR WORKING ON WEDNESDAY THROUGH
 FRIDAY OF THAT PARTICULAR WEEK.
 
    6.  RECORD TESTIMONY REFLECTS THAT CERTAIN SUPERVISORS, PRIOR TO MAY,
 1979, GRANTED LEAVE WITHOUT PAY (LWOP) FOR THE REMAINDER OF THE WEEKLY
 PERIOD TO EMPLOYEES WHO "MAXED OUT" DURING THEIR SEA TRIALS.
 
    BENTON CHANDLER, MECHANICAL ENGINEER WHO SUPERVISED OVER 20
 EMPLOYEES, TESTIFIED THAT FOR 11-12 YEARS HIS PRACTICE WAS TO GRANT LWOP
 WHEN REQUESTED IN SUCH CIRCUMSTANCES.  /3/ HE ACCORDED SUCH LEAVE BASED
 ON INSTRUCTION 12630.15 ISSUED ON JANUARY 23, 1973.  CHANDLER TESTIFIED
 THAT WHEN INSTRUCTION 9094.2 WAS ISSUED ON MAY 18, 1979, AND UPON A
 DIRECTIVE FROM JAMES H. JACOBS, LABOR RELATIONS SPECIALIST, HE
 DISCONTINUED SUCH PRACTICE.
 
    MICHAEL E. REMINGTON, WHO SUPERVISES 8-9 EMPLOYEES, TESTIFIED THAT
 PRIOR TO MAY, 1979 HE GRANTED LWOP ON ABOUT FIVE OCCASIONS TO
 INDIVIDUALS WHO "MAXED OUT" AFTER SEA TRIALS.  DURING THE FIVE YEAR
 PERIOD HE SERVED AS A SUPERVISOR, HE SENT OUT ABOUT 150 EMPLOYEES ON SEA
 TRIALS.  SUBSEQUENT TO MAY, 1979 REMINGTON WAS TRANSFERRED TO ANOTHER
 GROUP AND THUS HAD NO OPPORTUNITY TO GRANT OR DENY LWOP FOR "MAXED OUT"
 INDIVIDUALS.
 
    7.  RECORD FACTS REFLECT THAT COMMANDER G. R. GARRETSON, WHO WAS SEA
 TRIAL COORDINATOR AT THE SHIPYARD BETWEEN 1976-1979, GRANTED LWOP TO ONE
 EMPLOYEE WHO "MAXED OUT" IN 1976.  SINCE THE SUMMER OF 1976 HE REFUSED
 TO GRANT LWOP IN SUCH INSTANCES BECAUSE HE LEARNED THE POLICY AT THE
 SHIPYARD WAS NOT TO ALLOW SUCH LEAVE WHEN EMPLOYEES "MAXED OUT" AFTER
 THEIR SEA TRIALS.
 
    8.  AN EXPANDED STAFF CONFERENCE WAS HELD IN THE SPRING OF 1978
 ATTENDED BY 80-120 BRANCH HEADS AND SENIOR PERSONNEL.  CAPTAIN MCDONOUGH
 ADVISED THOSE IN ATTENDANCE THAT LWOP WOULD NOT BE GRANTED FOR THOSE WHO
 REACHED THEIR MAXIMUM STATUTORY PAY FOR THE PAY PERIOD AS A RESULT OF A
 SEA TRIAL.
 
    9.  UNDER DATE OF JANUARY 23, 1973 RESPONDENT ISSUED INSTRUCTION
 12630.15 DEALING WITH "LEAVE WITHOUT PAY." THIS INSTRUCTION STATED,
 INTER ALIA, THAT LEAVE WITHOUT PAY IS A TEMPORARY NON-PAY STATUS AND
 ABSENCE FROM DUTY;  THAT AN EMPLOYEE'S REQUEST THEREFOR SHALL BE GRANTED
 ONLY WHEN HIS SERVICES CAN BE SPARED WITHOUT DETRIMENT TO THE WORK IN
 WHICH HE IS ENGAGED;  AND THAT AUTHORIZATION FOR LWOP IS A MATTER OF
 ADMINISTRATIVE DISCRETION.  /4/
 
    10.  NEGOTIATIONS BETWEEN THE UNION AND RESPONDENT FOR THE WRITTEN
 AGREEMENT, REFERRED TO IN PARAGRAPH 2 ABOVE, TOOK PLACE DURING 1977 AND
 1978.  ON APRIL 12, 1977 THE UNION SUBMITTED TO MANAGEMENT VARIOUS
 PROPOSALS RE WAGES TO BE PAID EMPLOYEES.  INCLUDED THEREIN WAS A CLAUSE
 PROVIDING AS FOLLOWS:
 
    "SECTION 4.  WHILE ABOARD SHIPS ON SEA TRIALS, UNIT EMPLOYEES WILL
 NOT BE REQUIRED TO WORK
 
    ADDITIONAL HOURS IF THEY HAVE EXCEEDED THE BI-WEEKLY PAY LIMITATION
 (TOP STEP GS-15 SALARY) IF
 
    THERE IS ANOTHER EMPLOYEE QUALIFIED AND AVAILABLE TO DO THE WORK WHO
 IS IN A PAY STATUS OR
 
    UNLESS AN EMERGENCY EXISTS."
 
    11.  FOLLOWING THE SUBMISSION OF THE FOREGOING PROPOSAL THE PARTIES
 DISCUSSED THE MATTER ON SEVERAL OCCASIONS BETWEEN MAY AND AUGUST, 1977.
 THE UNION DESIRED MANAGEMENT TO GRANT LWOP FOR THE BALANCE OF THE PAY
 PERIOD WHEN EMPLOYEES "MAXED OUT" AFTER SEA TRIALS.  THE EMPLOYER TOOK
 THE POSITION THE EMPLOYEES COULD EARN COMPENSATORY TIME ON SEA TRIALS SO
 AS TO BE OFF DUTY, AND THE LIABILITY OF THE SHIPYARD WOULD BE REDUCED BY
 SEVERAL HUNDRED DOLLARS.  MANAGEMENT WAS UNWILLING TO GRANT LWOP IN
 ADDITION TO OVERTIME PAY, AND IT INFORMED THE UNION DURING THE MEETINGS
 THAT ALLOWING SUCH LEAVE WAS ILLEGAL AND BAD PRACTICE TO FOLLOW.
 REFERENCE WAS MADE BY THE UNION REPRESENTATIVE, THAT SOME SUPERVISORS
 WERE GRANTED LWOP AFTER SEA TRIALS, AND JACOBS REPLIED SUCH PROCEDURE
 WAS INAPPROPRIATE AND WOULD BE TERMINATED.
 
    12.  UNDER DATE OF AUGUST 9, 1977 THE UNION SUBMITTED ANOTHER
 PROPOSAL RE WAGES WHICH CONTAINED THE FOLLOWING LANGUAGE:
 
    "SECTION 5.  WHILE WORKING LONG PERIODS OF OVERTIME, EMPLOYEES WHO
 ARE EXEMPT UNDER THE
 
    FAIR LABOR STANDARDS ACT AND HAVE EXCEEDED THE BIWEEKLY PAY
 LIMITATIONS (TOP STEP GS-15
 
    SALARY) NORMALLY SHOULD NOT BE EXPECTED TO CONTINUE TO WORK IF THE
 EMPLOYEE CAN BE REPLACED BY
 
    ANOTHER EMPLOYEE WHO IS QUALIFIED AND AVAILABLE, EXCEPT DURING SEA
 TRIALS, OFF-SITE WORK, AND
 
    FOR UNFORESEEN CIRCUMSTANCES THAT REQUIRE THE EMPLOYEE'S SERVICES."
 
    THEREAFTER MANAGEMENT COUNTERED WITH A PROPOSAL WHICH WAS REDUCED TO
 WRITING AND EMBODIED IN THE WRITTEN AGREEMENT BETWEEN THE PARTIES AS SET
 FORTH IN PARAGRAPHS 2 AND 3 HEREINABOVE.
 
    13.  SUBSEQUENT TO THE EXECUTION OF THE WRITTEN AGREEMENT, AND IN
 ABOUT AUGUST, 1978, SUPERVISORS WERE ADVISED BY MANAGEMENT THAT
 EMPLOYEES WOULD BE EXPECTED TO WORK THE BASIC WORK WEEK EVEN THOUGH THE
 CONTRACT DIDN'T SPECIFICALLY SAY LWOP WOULD NOT BE GRANTED.
 
    14.  ON MAY 4, 1979 RESPONDENT FURNISHED ARTHUR FERREIRA, PRESIDENT
 OF THE UNION, A DRAFT OF INSTRUCTION 9094.2 WHICH MANAGEMENT PROPOSED TO
 ISSUE.  CLAUSE 4(D) THEREIN PROVIDED AS FOLLOWS:
 
    "(D) WHEN A PER ANNUM EMPLOYEE IS PAID UNDER TITLE 5 AND HAS REACHED
 A MAXIMUM OF GS-15
 
    STEP 10 ALL OTHER OVERTIME (INCLUDING COMPENSATORY TIME COMPUTED AT
 THE OVERTIME RATE) IS
 
    FORFEITED.  UNDER SUCH CIRCUMSTANCES LEAVE WITHOUT PAY WILL NOT BE
 GRANTED TO COMPENSATE FOR
 
    FORFEITED TIME.  ADDITIONALLY, WHEN AN EMPLOYEE HAS REACHED THE
 MAXIMUM EARNINGS OF GS-15 STEP
 
    10, LEAVE WITHOUT PAY WILL NOT BE GRANTED FOR THE REMAINDER OF THE
 REGULAR SCHEDULED
 
    WORKWEEK.  SHOULD AN EMPLOYEE REMAIN AWAY FROM WORK THE ABSENCE IS
 CHARGED TO COMPENSATORY
 
    TIME OFF, ANNUAL LEAVE OR SICK LEAVE, AS APPROPRIATE." (UNDERSCORING
 SUPPLIED).  /5/
 
    15.  FERREIRA NOTIFIED THE INDUSTRIAL RELATIONS OFFICER THAT HE WAS
 TROUBLED BY THE INSTRUCTION AND WOULD LIKE TO NEGOTIATE PARAGRAPH 4(D)
 WHICH DISALLOWED LWOP.  HE MET WITH JACOBS ON MAY 9 WHO STATED THEY HAD
 DISCUSSED THIS ON SEVERAL OCCASIONS;  THAT THE CONTRACT DIDN'T PROVIDE
 FOR IT AND MANAGEMENT DIDN'T INTEND TO GRANT LEAVE UNDER THESE
 CIRCUMSTANCES.  FERREIRA SUGGESTED THE GRANTING OF LEAVE BE LEFT TO THE
 SUPERVISORS, AS IT WAS AT THE TIME, AND JACOBS REPLIED IT HAD BEEN TAKEN
 OUT OF THE SUPERVISOR'S DISCRETION THROUGH NEGOTIATION.  THEY MET AGAIN
 ON MAY 11 WITH COMMANDER GARRETSON.  THE UNION REPRESENTATIVE SUGGESTED
 THAT REFERENCE TO SICK OR ANNUAL LEAVE, AS WELL AS TO COMPENSATORY TIME,
 BE DROPPED FROM 4(D) IN INSTRUCTION 9094.2;  AND THAT THE GRANTING OF
 LWOP BE LEFT TO THE DISCRETION OF THE SUPERVISORS.  MANAGEMENT REFUSED
 THE REQUEST RE LWOP, BUT IN THE FINAL DRAFT OF THE INSTRUCTION, WHICH
 ISSUED ON MAY 18, 1979, IT DID DELETE THE CLAUSE CHARGING TIME AWAY FROM
 WORK, AFTER THE MAXIMUM EARNINGS, TO COMPENSATORY TIME, SICK LEAVE, OR
 ANNUAL LEAVE.  /6/
 
    16.  ON ABOUT MAY 14 JACOBS INFORMED FERREIRA THAT INSTRUCTION 9094.2
 WAS SENT TO THE PUBLISHERS.  NO FURTHER CONTACT WAS HAD BETWEEN THE
 PARTIES AND THE INSTRUCTION BECAME EFFECTIVE ON MAY 29, 1979.
 
                                CONCLUSIONS
 
    IT IS CONTENDED BY THE GENERAL COUNSEL THAT AN ESTABLISHED PRACTICE
 EXISTED AT THE SHIPYARD WHICH WAS UNILATERALLY CHANGED BY RESPONDENT IN
 VIOLATION OF THE ACT.  GENERAL COUNSEL ARGUES THAT, IN THE PAST,
 SUPERVISORS WERE PERMITTED TO GRANT LEAVE WITHOUT PAY TO EMPLOYEES WHO
 "MAXED OUT" AT SEA TRIALS.  THIS DISCRETIONARY AUTHORITY, IT IS ALLEGED,
 WAS CHANGED BY THE INSTRUCTION 9094.2, 4(D), WHICH WAS ISSUED ON MAY 18,
 1979 AND MANDATED THAT NO LWOP WOULD BE GRANTED IN SUCH INSTANCES.  IT
 IS FURTHER MAINTAINED THAT THIS CHANGE WAS NOT DISCUSSED WITH THE UNION
 NOR WAS THE LATTER GIVEN AN OPPORTUNITY TO BARGAIN THEREON.
 
    IN ADDITION TO DISPUTING THE AFORESAID CONTENTIONS OF THE GENERAL
 COUNSEL, THE RESPONDENT ADVANCES SEVERAL DEFENSES HEREIN.  IT ALLEGES
 FURTHER THAT (1) GRANTING LWOP TO EMPLOYEES WHO "MAXED OUT" BEFORE THE
 END OF A PAY PERIOD IS ILLEGAL UNDER 5 U.S.C. 5546 AND 6101(C);  (2) BY
 VIRTUE OF REGULATIONS GOVERNING THIS MATTER, THE GRANTING OF LWOP IN
 SUCH CIRCUMSTANCES IS A NONNEGOTIABLE SUBJECT OF BARGAINING;  (3) THE
 UNION WAIVED ITS RIGHT TO NEGOTIATE FURTHER ON THIS ISSUE SINCE IT
 BARGAINED ON THE SUBJECT, MODIFIED ITS DEMAND FOR SUCH LWOP, AND AGREED
 TO A CLAUSE WHICH ALLOWS TIME OFF FROM OVERTIME ASSIGNMENTS IN "MAXING
 OUT" SITUATIONS;  (4) THE PARTIES HAD BARGAINED TO IMPASSE OVER THE
 MATTER, AND THE UNION WAS NOTIFIED OF RESPONDENT'S INTENTION TO
 IMPLEMENT THE LAST OFFER;  (5) WHETHER A UNILATERAL CHANGE OCCURRED
 HINGES ON AN INTERPRETATION OF THE CONTRACT BETWEEN THE PARTIES (ARTICLE
 II, SECTION 5), AND THUS THE ISSUE SHOULD BE DEFERRED TO ARBITRATION.
 /7/
 
    WHILE THE EXISTENCE, OR NON-EXISTENCE, OF AN ESTABLISHED PRACTICE IS
 A FACTUAL ISSUE, CERTAIN GUIDELINES MAY WELL BE HELPFUL IN MAKING A
 DETERMINATION WITH RESPECT THERETO.  THUS, IN DEPARTMENT OF HEALTH,
 EDUCATION AND WELFARE, REGION V, CHICAGO, ILLINOIS, 5-CA-37 ET AL.
 (FEBRUARY 4, 1980) ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY STATED
 THAT PRACTICES OR PROCEDURES FOLLOWED BY EMPLOYEES, DO NOT, WITHOUT
 MORE, BECOME CONDITIONS OF EMPLOYMENT.  HE CONCLUDED THAT A PRACTICE
 MUST:  (1) BE KNOWN TO MANAGEMENT;  (2) RESPONSIBLE MANAGEMENT MUST
 KNOWINGLY ACQUIESCE;  AND (3) SUCH PRACTICE MUST CONTINUE FOR SOME
 SIGNIFICANT LENGTH OF TIME.
 
    IN SUPPORT OF ITS POSITION THAT EMPLOYEES WHO "MAXED OUT" AT SEA
 TRIALS WERE, AS AN ESTABLISHED PRACTICE, GRANTED LWOP AT THE DISCRETION
 OF MANAGEMENT, GENERAL COUNSEL RELIES ON TESTIMONY FROM TWO SUPERVISORS
 AND SEVERAL EMPLOYEES AS WELL AS INSTRUCTION 12630.15 ISSUED IN 1973.
 IT INSISTS THIS PROCEDURE WAS FOLLOWED AT THE SHIPYARD UNTIL 1979 WHEN
 INSTRUCTION 9094.2 ALTERED THE PRACTICE AND PROHIBITED THE GRANTING OF
 LWOP TO SUCH INDIVIDUALS.
 
    RECORD FACTS DISCLOSE THAT, APART FROM THE POLICY ADOPTED BY SEVERAL
 SUPERVISORS PRIOR THERETO, MANAGEMENT EXPRESSLY DISAFFIRMED THE GRANTING
 OF SUCH LWOP IN 1978.  THUS, AT AN EXPANDED STAFF CONFERENCE, ATTENDED
 BY APPROXIMATELY 100 BRANCH HEADS AND SENIOR PERSONNEL IN THE SPRING OF
 THAT YEAR, CAPTAIN MCDONOUGH STATED THAT NO LWOP WOULD BE ALLOWED WHEN
 EMPLOYEES "MAXED OUT" AFTER SEA TRIALS.  MOREOVER, COMMANDER GARRETSON,
 WHO WAS SEA TRIAL COORDINATOR AT THE SHIPYARD DURING THE 1976-1979
 PERIOD, TESTIFIED HE DID NOT GRANT SUCH LEAVE AFTER 1976 SINCE HE
 LEARNED THE POLICY WAS TO DENY IT IN SUCH INSTANCES.  FURTHER, THE
 RECORD REFLECTS THAT SUPERVISORS WERE INFORMED BY RESPONDENT IN ABOUT
 AUGUST, 1978 THAT EMPLOYEES WOULD BE EXPECTED TO WORK THE BASIC WORK
 WEEK.
 
    WHILE I AM COGNIZANT OF THE FACT THAT INSTRUCTION 12630.15 ISSUED IN
 1973 DECLARED THAT ALLOWING LWOP WAS DISCRETIONARY, IT DOES APPEAR THAT,
 AT LEAST SINCE 1978, MANAGEMENT DID NOT ACKNOWLEDGE SUCH LEAVE IN "MAXED
 OUT" SITUATIONS.  RATHER DOES THE RECORD REFLECT THAT RESPONDENT
 DISCOVERED SUCH PRACTICE AND INFORMED ITS SUPERVISORY PERSONNEL
 ACCORDINGLY.  /8/ GENERAL COUNSEL DOES, IT IS TRUE, ADVERT TO THE FACT
 THAT TWO SUPERVISORS IN THE SHIPYARD CONTINUED TO GRANT SUCH LEAVE UNTIL
 THE 1979 INSTRUCTION WAS ISSUED.  HOWEVER, I AM RELUCTANT TO CONCLUDE
 THAT THE ADOPTION OF SUCH PRACTICE BY TWO SUPERVISORS AT A SHIPYARD WITH
 NUMEROUS DEPARTMENTS AND SUPERVISORY PERSONNEL IS TANTAMOUNT TO ITS
 ESTABLISHMENT AS A CONDITION OF EMPLOYMENT.  THIS IS PARTICULARLY SO
 WHEN THE RECORD HEREIN REVEALS THAT SUCH LEAVE WAS GRANTED TO A
 RELATIVELY SMALL NUMBER OF EMPLOYEES AT THE YARD.  MOREOVER THE PRACTICE
 PURSUED BY SUPERVISORS CHANDLER AND REMINGTON WAS NOT UNIFORMLY ADOPTED
 AT THE YARD, NOR WAS IT SO WIDESPREAD AS TO 'RIPEN' INTO A CONDITION OF
 EMPLOYMENT.
 
    ACTIONS TAKEN BY MANAGEMENT, SINCE AT LEAST 1978, BELIE AN
 ACQUIESCENCE IN THE EXISTENCE OF A PRACTICE AS CONTENDED BY THE GENERAL
 COUNSEL.  DURING CONTRACT NEGOTIATIONS IN 1977-1978 MANAGEMENT RESISTED
 THE GRANTING OF SUCH LWOP TO "MAXED OUT" EMPLOYEES, AND IT CONTINUED TO
 ASSERT SUCH A PRACTICE WAS INADVISABLE.  MOREOVER, RESPONDENT'S
 RESPONSIBLE OFFICIALS TOOK EFFORTS TO COMMUNICATE ITS REJECTION OF SUCH
 A PRACTICE TO THE SUPERVISORY PERSONNEL.  IN SUCH A POSTURE, I AM
 PERSUADED THAT THE ADOPTION OF THE SAID PRACTICE BY A FEW SUPERVISORS IS
 NOT EQUATABLE WITH AN ESTABLISHED CONDITION OF EMPLOYMENT.  ACCORDINGLY,
 I FIND AND CONCLUDE THAT AS OF MAY 18, 1979-- WHEN INSTRUCTION 9094.2
 WAS ISSUED-- THERE DID NOT EXIST AT RESPONDENT'S SHIPYARD AN ESTABLISHED
 PRACTICE OF GRANTING LEAVE WITHOUT PAY TO INDIVIDUALS WHO "MAXED OUT" AT
 SEA TRIALS.
 
    ACCORDINGLY, AND ON THE BASIS OF THE FOREGOING, IT IS CONCLUDED THAT
 RESPONDENT DID NOT VIOLATE SECTIONS 7116(A)(1) AND (8) OF THE ACT.
 THEREFORE, IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING
 ORDER PURSUANT TO 5 C.F.R. 2423.29(C):
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-58 BE, AND
 THE SAME IS, HEREBY DISMISSED.
 
                         WILLIAM NAIMARK
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JUNE 4, 1980
    WASHINGTON, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ ARTICLE II, SECTION 5.
 
    WHILE WORKING LONG PERIODS OF OVERTIME, EMPLOYEES WHO ARE EXEMPT
 UNDER THE FAIR LABOR
 
    STANDARDS ACT AND HAVE EXCEEDED THE BIWEEKLY PAY LIMITATIONS (TOP
 STEP GS-15 SALARY) NORMALLY
 
    SHOULD NOT BE EXPECTED TO CONTINUE TO WORK ADDITIONAL OVERTIME HOURS
 IF THE EMPLOYEE CAN BE
 
    REPLACED BY ANOTHER EMPLOYEE WHO IS QUALIFIED AND AVAILABLE, EXCEPT
 DURING SEA TRIALS, OFFSITE
 
    WORK, AND OTHER CIRCUMSTANCES THAT REQUIRE THE EMPLOYEE'S SERVICES.
 
    /2/ IN VIEW OF THE DISCRETIONARY NATURE OF THE PAST PRACTICE INVOLVED
 AND THE LACK OF ANY SPECIFIC EVIDENCE TO SUPPORT A BACKPAY AWARD, THE
 AUTHORITY SHALL NOT ORDER A BACKPAY REMEDY HEREIN.
 
    /3/ ALTHOUGH CHANDLER DID NOT KNOW HOW MANY "MAXED OUT" EMPLOYEES
 WERE GRANTED LWOP, HE TESTIFIED THAT HE SENDS OUT ABOUT FOUR INDIVIDUALS
 ON SEA TRIALS FOUR TO SIX TIMES A YEAR.  TWO EMPLOYEES TESTIFIED AT THE
 HEARING THAT ON AT LEAST ONE OCCASION EACH RECEIVED APPROVAL FROM
 CHANDLER TO TAKE LWOP IN SUCH INSTANCES AND A THIRD EMPLOYEE TESTIFIED
 HE "MAXED OUT" TWICE AND WAS GRANTED LWOP.
 
    /4/ NO SPECIFIC REFERENCE IS MADE IN SAID INSTRUCTIONS REGRANTING
 LWOP AFTER EMPLOYEES "MAXED OUT" DURING SEA TRIALS.
 
    /5/ JACOBS TESTIFIED THE CLAUSE RE NOT GRANTING LWOP WAS PUT IN THE
 INSTRUCTION TO MAKE SURE EVERYONE FOLLOWED THE SAME CONSISTENT POLICY;
 THAT IT WAS NOT INSERTED SO THAT GRANTING OF SICK LEAVE IN "MAXING OUT"
 SITUATIONS WOULD NO LONGER TAKE PLACE.
 
    /6/ EXCEPT FOR THESE DELETIONS, PARAGRAPH 4(D) IN THE ORIGINAL DRAFT
 OF THIS INSTRUCTION REMAINED THE SAME AND WAS CONTAINED IN 9094.2 AS
 ISSUED ON MAY 18.
 
    /7/ IN VIEW OF THE CONCLUSION REACHED BY THE UNDERSIGNED WITH RESPECT
 TO THE EXISTENCE OF THE PRACTICE ITSELF, I MAKE NO DETERMINATION
 CONCERNING THE VALIDITY OF THESE OTHER DEFENSES.
 
    /8/ IT MAY WELL BE THAT MANAGEMENT'S ACTION IN 1978 WAS UNILATERAL IN
 NATURE AND GAVE RISE TO AN UNFAIR LABOR PRACTICE CHARGE AT THAT TIME.
 HOWEVER, THE CASE BEFORE ME IS PREDICATED SOLELY ON RESPONDENT'S CONDUCT
 IN MAY, 1979.