[ v13 p112 ]
13:0112(29)CA
The decision of the Authority follows:
13 FLRA No. 29
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 3-CA-950
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practices alleged in the complaint, and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. Thereafter, the Respondent filed exceptions to the
Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. /1/ Upon consideration of
the Judge's Decision and the entire record, the Authority hereby adopts
the Judge's findings, conclusions and Recommended Order, as modified
herein.
The complaint alleges, in essence, that the Respondent, Social
Security Administration (SSA), violated section 7116(a)(1) and (5) of
the Statute by unilaterally changing the past practice of allotting 100%
official time to the National Council of SSA Field Operations Locals
(the National Council) President for participating in labor-management
relations activities by charging the President annual leave for
preparing for negotiations in Washington, D.C.
The Respondent contends that the essence of the dispute as to whether
the National Council President should have been granted official time to
prepare for negotiations in Washington, D.C. involves differing and
arguable interpretations of a November 2, 1979 Memorandum of Agreement,
and that the proper forum for resolution of such dispute was the
arbitration process and not the unfair labor practice procedure. In
disagreement with the Respondent, the Authority finds that the
Memorandum of Agreement did not pertain to the granting of official time
to prepare for negotiations. Rather, it established an interim
grievance procedure covering the consolidated unit until such time as
the master agreement was negotiated and provided that union
representatives would be given a reasonable amount of official time to
handle grievances under that procedure. Thus, the Authority concludes
that the dispute herein does not involve merely a differing and arguable
interpretation of the Memorandum of Agreement.
Further, the Authority concludes, in agreement with the Judge, that
there was an established past practice whereby the National Council
President was entitled to use 100% official time for labor-management
relations activities, which included preparation for national
consultation rights matters and negotiations. According to the record,
such practice was continued and reaffirmed on numerous occasions during
the pendency of AFGE's petition for consolidation of units and following
AFGE's certification as exclusive representative of the consolidated
bargaining unit under the Statute. In so concluding, the Authority
notes particularly its earlier determination that "the use of official
time to prepare for negotiations is a matter which is not excepted from
the duty to bargain as 'internal business of the labor organization'
under section 7131(b) of the Statute." American Federation of Government
Employees, AFL-CIO, Local 1692 and Headquarters, 323rd Flying Training
Wing (ATC), Mather Air Force Base, California, 3 FLRA 304, 308 (1980)
(Emphasis in original.) /2/
Accordingly, the Authority adopts the Judge's conclusion that the
Respondent's refusal to grant the National Council President official
time to prepare for national negotiations constituted a unilateral
change in the past practice which entitled the National Council
President to use 100% of his time for labor-management relations
activities, and therefore violated section 7116(a)(1) and (5) of the
Statute. /3/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Social Security Administration, Baltimore,
Maryland shall:
1. Cease and desist from:
(a) Unilaterally instituting changes with respect to the 100%
allowance of official time to John O. Harris, President of the National
Council of Social Security Field Operations Locals, American Federation
of Government Employees, AFL-CIO, without providing prior notice to, and
upon request, bargaining with the American Federation of Government
Employees, AFL-CIO, the exclusive representative of its employees.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action:
(a) Provide John H. Harris, President of the National Council of
Social Security Field Operations Locals, American Federation of
Government Employees, AFL-CIO, with official time for the performance of
his representational duties during February 1980, and make him whole for
any annual leave or leave without pay he may have utilized during that
period to perform representational duties as a representative of the
National Council of Social Security Field Operations Locals.
(b) Post at its facilities in Baltimore, Maryland and St. Paul,
Minnesota, where unit employees are located, copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. /4/ Upon receipt of such forms they shall be signed by the
Commissioner, or his designee, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including bulletin
boards and all other places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that such Notices are
not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., September 27, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally institute changes with respect to the 100%
allowance of official time to John D. Harris, President of the National
Council of Social Security Field Operations Locals, American Federation
of Government Employees, AFL-CIO, without providing prior notice to, and
upon request, bargaining with the American Federation of Government
Employees, AFL-CIO, the exclusive representative of our employees. WE
WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their rights assured by the
Statute. WE WILL provide John D. Harris official time for the
performance of his representational duties during February 1980 and make
him whole for any annual leave or leave without pay he may have utilized
during that period to perform representational duties as a
representative of the National Council of Social Security Field
Operations Locals.
(Activity)
Dated: . . . By: (Signature) (Title) This Notice must remain posted
for 60 consecutive days from the date of posting, and must not be
altered, defaced, or covered by any other material. If employees have
any questions concerning this Notice or compliance with its provisions,
they may communicate directly with the Regional Director, Region III,
Federal Labor Relations Authority, whose address is: 1111 18th Street,
Room 700, P.O. Box 33758, Washington, D.C. 20033-0758 and whose
telephone number is: (202) 653-8507.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 3-CA-950
Irving L. Becker and
Francis X. Dippel
For the Respondent
Clara Williamson, Esq.
For the General Counsel
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
Statement of the Case
This case arose pursuant to the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101, et seq., hereinafter
called the Statute, as a result of an unfair labor practice charge filed
on March 10, 1980. The complaint, issued on August 15, 1980, alleged
that the Social Security Administration, hereinafter called Respondent
violated section 7116(a)(1) and (5) of the Statute by unilaterally and
without bargaining with American Federation of Government Employees,
AFL-CIO, /5/ Hereinafter called the Union or Council, changed a past
practice of 100% allotment of official time to the National Council
President.
Respondent filed answers denying the commission of any unfair labor
practices.
A hearing was held in this matter before the undersigned in
Baltimore, Maryland and Washington, D.C. on October 2, 9 and November 3,
1980. All parties were represented by counsel and afforded full
opportunity to be heard, adduce relevant evidence, and examine and
cross-examine witnesses. All parties filed timely briefs which have
been duly considered.
Based upon the entire record herein, including my observation of the
witnesses and their demeanor, the exhibits and other relevant evidence
adduced at the hearing, I make the following findings of fact,
conclusions of law and Order.
Findings of Fact
1. Since August 30, 1979 the Union, a labor organization within the
meaning of section 7103(a)(4) of the Statute, has been the certified
exclusive representative of professional and non-professional employees
in a consolidated unit representing approximately 35,000 Field
Operations' employees nationwide.
2. The National Council of SSA Field Operations Locals was
established in 1977. Prior to August 1979, the Council enjoyed national
consultation rights with Respondent. The function of the Council is to
represent the interests of field operation employees of Respondent.
Prior to the above mentioned consolidation, the Council and Respondent
met periodically on official time. These meetings normally were held in
January, May and September of each year and Council officers were
brought to Baltimore, Maryland from points around the country on travel
and per diem paid by Respondent. The Council officers involved in these
meetings consisted of the president, executive vice-president,
treasurer, secretary, administrative vice-president and ten regional
vice-presidents.
3. William Nussbaum served as President of the Council from April
1977 until December 1979. During that time, President Nussbaum
testified he "was on official time during most of that period of time."
President Nussbaum, who was employed by Respondent as a claims
representative in Patterson, New Jersey, also stated that during the
time he was Council President he worked 40 hours a week, not doing
Social Security work, but rather, doing labor relations work
representing the interests of some 126 local unions within the Council,
advising them how to proceed, giving them information on negotiating
contracts, representing the interests of employees on a day-to-day basis
and representing their interests with management in the Central Office.
President Nussbaum stated that, he spent "100 per cent of 'his' time
handling labor relations matters for the Social Security
Administration."
4. Concerning how he used the official time Nussbaum stated that the
practice of allowing him 100 percent official time applied to
preparation time for consultation nationally as well as preparation time
regionally. He further testified that he was not required to notify his
supervisor or any other management official before taking official time,
but that he was required to notify his supervisor as to where he was
going to be.
5. President Nussbaum also testified that in August 1978 management
began giving him a "problem with my official time." However, he states
that this issue was resolved by a February 9, 1979 letter from William
C. Grace, Jr., Assistant Regional Commissioner Field Operations granting
him "full time to conduct labor-management relations activities."
6. A March 1, 1979 memorandum from F. D. DeGeorge, Acting Deputy
Commissioner of Social Security in response to a January 24, 1979 letter
from Mr. John Harris, National Council of Field Operations, in a
penciled-in notation, granted the Council President 100% time while
granting from 1 to 3 days of official time to other Council officials to
conduct labor-management activities related to National Consultation
Rights. Mr. DeGeorge's memorandum further indicates that this was
merely an interim arrangement "pending certification of the national
unit and simultaneous termination of the National Consultation Rights
relationship" and that as in the past the requests for specific
allotments for official time would be considered on a case-by-case
basis. The letter added that "mutually agreeable understandings on how
and when official time is to be utilized" should be worked out so as not
to disturb the agency's mission. Mr. DeGeorge testified that he agreed
to this memorandum under the theory that substantially all of the work
of the officers, including the Council President, in a broad sense, was
to represent their constituents in the total representation of the
contracts and that there were many contracts. Mr. DeGeorge also
testified that in his view, many union officers including four of five
senior in Local 1923, the Council President of New York, and the
District Office Council President spent substantially all of their time
on labor-management relations, and that he felt that he was not making a
compromise "to allow them some time to prepare for upcoming negotiations
on the theory they substantially spent their time in labor-management
anyway. /6/
7. On August 3, 1979, President Nussbaum wrote Respondent's Acting
Associate Commissioner Herbert R. Doggette, Jr. stating, among other
things:
An area of immediate concern to our Field Operations Council
during this transition period is the continuance of the official
time memorandum agreed to by Mr. DeGeorge. It is our position
that for a responsible, effective labor-management relationship to
continue in the Field Operation, it is imperative the official
time policies outlined in that memo remain in effect until the
parties have negotiated a Master Agreement which will then take
precedence on this issue.
Leo J. Corbett, Acting Associate Commissioner for Management, Budget,
and Personnel responded to the Nussbaum letter on behalf of Mr. Doggette
on September 18, 1979 and said:
No change in existing arrangements covering official time
authorizations is contemplated at this time. We, too, expect that
the matter of official time usage will be included in the
negotiation of an agreement once the consolidated unit is
certified.
8. On December 31, 1979, Mr. Nussbaum resigned as National Council
President and was succeeded in that position around January 1, 1980 by
Mr. John Harris, who had previously been Council Executive
Vice-President. Respondent was notified by letter dated April 3, 1980,
about changes in National Council officers. This letter indicated that
Mr. Harris had become Council President on January 20, 1980. There is
no question that Respondent was aware that Harris had assumed the
President's role prior to February 1980.
9. John Harris, is employed by Respondent as a claims representative
in its St. Paul, Minnesota District Office. Prior to becoming National
Council President in January 1980, Harris, as previously stated, served
as Executive Vice President of the council. Harris testified that,
prior to assuming the office of Council President he talked with Mr.
Paul Arca, /3/ Branch Chief of the Division of Labor Relations Social
Security for Field Operations in late November 1979 concerning the
amount of official time he would be allowed for labor-management
relations matters when he assumed the new position. According to
Harris, ARCA informed him that the Council President got 100 percent
time. Later, in December 1979, Harris talked with Arca again about a
notification that had been initiated concerning his use of official time
as acting Council President, a position which he occupied during that
month. In early January 1980, Harris testified that, Arca informed him
"that the word had been passed down to region, but the paperwork just
got hung up." Harris also stated that he talked with St. Paul Assistant
District Manager Tom Potrany in an effort to jockey the paper work on
the notification out of the regional office.
10. In early January 1980, Harris also spoke with his supervisor
District Manager Dean Lemke concerning his use of official time.
According to Harris, Lemke told him that, "he was told that he should
assume that I was on official time unless I would tell him otherwise,
that is to say, if I ran out of business to do, I would come to him and
he would find some sort of other task to do." Harris testified that
Lemke told him, "that in keeping with the past practice, I should inform
him when I was going to leave the office, whether out of state or in the
city someplace or what have you." Finally, Lemke told Harris that, "you
won't be using official time for internal union business."
11. According to Harris, he assumed the 100 percent almost
immediately upon becoming Council President. He was engaged in work
involving the receipt of information from the Agency with regard to
proposals to make changes or the study or analysis of internal
memorandum of the Agency with respect to operational changes in order to
either prepare proposals or opting not to negotiate if the Union felt
there was no impact.
12. On or around February 4, 1980, Harris submitted an itinerary to
Lemke for the period February 11 to February 22, 1980. The itinerary
indicated that Harris would be in Washington to "prepare for negotiation
of the national Master Agreement" except for several days during that
period when he would be conferring with Deputy Commissioner Doggette.
13. Lemke responded in a memorandum entitled "Your Implied Request
of 2/4/80 for Official Time" stating that "(p)er conversations I had
this date with Baltimore you are allowed official time on 2/11, 2/15 and
2/22. Thus, on 2/12 thru 2/14 and 2/19 thru 2/21 you will not be
allowed official time. If absent during this period you will be charged
leave."
14. On that same day, Harris responded to the Lemke reiterating
that, he was requesting absences in order to draft the Master Agreement
for the up-coming national negotiations. Harris stated that, "I presume
from your response that you are still instructed to deny official time
for such 'preparation.'" Harris further stated that, because of a
previously filed unfair labor practice charge, "I have been granted
'100%' official time for my LMR responsibilities; therefore, this
denial of official time contravenes that arrangement and moreover seems
predicated on the misconception that preparation for negotiations is
'internal union business, as you previously characterized it." /8/
Harris requested seventy-two (72) hours of leave without pay to cover
the period for which leave was denied.
15. Harris testified that the above-memoranda were, in a small
office such as St. Paul, only for the purpose of documentation. He
states that in conversation with Mr. Lemke, he was informed that the
position set out by Lemke "was one that he was instructed to take by Mr.
Paul Arca and that it was essentially a technical position, that the
question of use of official time in this instance bore on whether or not
preparation for bargaining was prohibited under the Statute, that is
7131(b)." Harris also stated that the request he submitted on February
4, 1980 was not a request for official time, but that he was providing,
as he customarily did when going out of town, an itinerary. Lemke's
testimony was in no way inconsistent with that of Harris concerning the
events surrounding the February 4, 1980 denial.
Discussion and Conclusions
The record reveals that during 1977-78 the Council President was
allowed to use 100% of his efforts for labor relations activities
including preparations for national consultation rights matters and
regional negotiations. There is no dispute that the Council Presidents
since 1977 have been allowed 100% official time for labor relations
matters, but only that the allowance of such time does not extend to
preparations for national negotiations.
The General Counsel contends that allowing time for preparations of
national consultation rights matters and regional negotiations
established a past practice of allowing such time for preparations and
that there is no substantial difference between national consultation
and negotiations. Respondent argues, among other things, that a
preponderance of the evidence does not establish a past practice
concerning preparation time.
I agree with the General Counsel that there is no appreciable
difference between national consultation and national negotiations.
Although the purpose of each was different they both involve
representational duties by the Council in representing employees at the
national level. Furthermore, if such a different exists, a stronger
argument could be made that time should be alloted for preparation for
negotiations since the parties are by Statute required to meet and
bargain about working conditions. Respondent ignores the fact that both
involve meeting and dealing with agency officials at national and
regional levels. Respondent also disregards the fact that Council
President Nussbaum was allowed to visit national headquarters for
consultations several times yearly on official time and per diem for
several years as Council President and that while there was allowed
preparation time. Unless the parties bargained a new agreement with
respect to the time allocation, it is my view that this practice is
extant. It is, therefore, found that a past practice of allowing time
for preparation for national consultations and regional negotiations
existed. It is further found, that such allocation inured to the
benefit of any succeeding Council President unless changed through good
faith negotiations.
It is axiomatic that once a past policy or practice has matured into
a term or condition of employment, it may not be unilaterally changed.
Respondent urges that certain criteria are needed to establish a past
practice. While I agree, it is evident from the record that Council
President Nussbaum was not only allowed 100% of his time for labor
relations matters, but that he also attended negotiations and
consultation meetings for which he was allowed time for preparation of
the Council's position on all matters involving labor relations whether
at the local or national level. The testimony of Nussbaum reveals that
a great deal of his time was spent in helping locals prepare for
bargaining. Likewise President Harris testified that a large part of
his work as Council President involved receipt of information from the
Agency and preparation of proposals. Thus, it appears that a
substantial portion of the National Council President's time has always
involved preparations for both negotiations and consultations. I see no
real distinction between those preparations done at their respective
offices and traveling to Baltimore or Washington, D.C. to prepare for
negotiations. Further, Respondent has not challenged in any meaningful
manner the use of 100% official time by the Council President, but has
acquiesced in his use of 100% official time as he deemed necessary.
Moreover, to allow full use of the Council President's time for
labor-relations matters and then to attempt to tell him how to use that
time appears not only to be interference with the manner in which he
fulfilled his office, but is as described by Justice Jackson "only a
promise to the ear to be broken to the hope, a teasing illusion like a
munificent bequest in a paupers will." Edwards v. California, 314 U.S.
160, 196 (1941) concurring opinion.
In this case, the Council President was improperly denied official
time for preparation for national negotiations on February 4, 1980 based
on Respondent erroneous view that such preparations were "internal union
business." The Authority has clearly stated, based on its review of the
legislative history of the Statute that activities such as collective
bargaining negotiations which involve labor-management contracts, as
well as preparation for such activities are not "internal union
business." See American Federation of Government Employees, Local 1692
and Headquarters, 323 Flying Wing (ATC), Mather Air Force Base,
California, 3 FLRA No. 47 (1980); Federal Uniformed Firefighters, Local
F-169 and U.S. Army Armament Research and Development Command, Dover,
New Jersey, 3 FLRA No. 1980. Under the above cited cases, there exists
a duty to bargain concerning the amount of official time to be allowed
union negotiators. Prior practice had established entitlement to 100%
official time in this matter and Respondent may not unilaterally alter
that practice without notification and bargaining. /9/
Even assuming the General Counsel had not established the existence
of a past practice in this case, the March 1, 1979 memorandum of Deputy
Commissioner DeGeorge reveals that the Council President was entitled to
100% of his time as "an interim arrangement pending certification of the
national unit and the simultaneous termination of the National
Consultation rights relationship." While there was certification of the
consolidated unit in August 1979 the parties were still in the process
of bargaining on the national Master Agreement and the interim agreement
as part of the past relationship was still in effect. Thus, Respondent
and the Union extended the existing allowance of official time to the
Council President beyond the certification of the consolidated units by
letter dated September 18, 1980 until different arrangements were
negotiated between the parties. To argue that there is a dispute over
how much official time the Council President is entitled to flies
directly in the face of the March 1979 agreement between the parties,
which established on an interim basis that the Council President was
entitled to unlimited or 100% usage of official time for labor relations
activities. Therefore, it is found that so long as he was not engaged
in "internal union business" the Council President was entitled to use
100% of his time for labor relations matters under both established past
practice and the March 1979 agreement. Respondent's denial of the
February 1980 request for official time based on its erroneous belief
that Harris was going to be engaged in "internal union business" for a
substantial portion of the time that his itinerary stated is found to be
both a change in the established past practice and in derogation of the
March 1979 agreement, without notice to or bargaining with the Union.
Accordingly, it is found that Respondent's refusal to grant official
time to National Council President Harris in February 1980, because he
would be engaging in "internal union business" constituted a unilateral
change in a term or condition of employment without good faith
negotiations and is violative of sections 7116(a)(1) and (5) of the
Statute.
Having found that Respondent violated section 7116(a)(1) and (5) of
the Statute, it is recommended that the Authority adopt the following
Order.
ORDER
Pursuant to Section 7118(a)(7)(A) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7118(a)(7)(A), and Section
2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section
2423.29(b)(1), the Authority hereby orders that the Social Security
Administration, Baltimore, Maryland, shall:
1. Cease and desist from:
(a) Unilaterally instituting changes with respect to the 100%
allowance of official time to John D. Harris, President of the
National Council of Social Security Field Operations Locals,
American Federation of Government Employees, AFL-CIO, without
providing notice to, and upon request, meeting with and bargaining
with the National Council of Social Security Field Operations
Locals, American Federation of Government Employees, AFL-CIO, the
exclusive representative of its employees, or any other exclusive
representative.
(b) In any like or related manner interfering with, restraining
or coercing its employees of their rights assured by the Statute.
2. Take the following affirmative actions:
(a) Provide John H. Harris, President of the National Council
of Social Security Field Operations Locals, American Federation of
Government Employees, AFL-CIO with official time for the
performance of his representational duties during February 1980,
and make him whole for any annual leave or leave without pay he
may have utilized during that period to perform his
representational duties.
(b) Post at its offices in Baltimore, Maryland and St. Paul,
Minnesota, wherein unit employees are located, copies of the
attached notice marked "Appendix." Copies of said notice, to be
furnished by the Commissioner, after being signed by an authorized
representative, shall be posted by representatives of the
Baltimore, Maryland and St. Paul, Minnesota, immediately upon
receipt thereof and be maintained by such representative for 60
consecutive days thereafter, in conspicuous places, including all
places where notice to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Federal Labor Relations Authority, in writing,
within 30 days from the date of this order as to what steps have
been taken to comply herewith.
ELI NASH, JR.
Administrative Law Judge
Dated: June 25, 1981
Washington, D.C.
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to provide John D. Harris or any other Agency
employee while engaged in representing the National Council of Social
Security Field Operations Locals, American Federation of Government
Employees, AFL-CIO, the employees exclusive representative, official
time for participation in labor relations matters. WE WILL NOT in any
like or related manner, interfere with, restrain or coerce such
employees in the exercise of their rights assured by the Statute. WE
WILL, upon request provide John D. Harris official time for performance
of his representational duties and make him whole for any annual leave
or leave without pay he may have utilized during February 1980, the
period when he was engaged in representational duties as a
representative of the National Council of Social Security Field
Operations Locals.
(Agency or Activity)
Dated: . . . BY: (Signature) This Notice must remain posted for 60
consecutive days from the date of posting and must not be altered,
defaced or covered by any other material. If employees have any
questions concerning this Notice or compliance with its provisions, they
may communicate directly with the Regional Director of Region III,
Federal Labor Relations Authority, whose address is: 1133 15th Street,
NW., Suite 300, Washington, D.C. 20005; Telephone Number: (202)
653-8506
--------------- FOOTNOTES$ ---------------
/1/ The Respondent excepted to certain credibility findings made by
the Judge. The demeanor of witnesses is a factor of consequence in
resolving issues of credibility, and the Judge has had the advantage of
observing the witnesses while they testified. The Authority will not
overrule a Judge's resolution with respect to credibility unless a clear
preponderance of all the relevant evidence demonstrates that such
resolution was incorrect. The Authority has examined the record
carefully, and finds no basis for reversing the Judge's credibility
findings. In addition, the Authority finds no merit to the Respondent's
related exception that the Judge exhibited prejudgment and bias which
tainted his credibility findings by encouraging the parties to settle
the case in off-the-record discussions after a management witness had
testified in a manner adverse to the Respondent's position. See Bureau
of Government Financial Operations Headquarters, 11 FLRA No. 68 (1983).
/2/ See also Federal Uniformed Firefighters, Local F-169 and the U.S.
Army Armament Research and Development Command, Dover, New Jersey, 3
FLRA 316 (1980).
/3/ In so concluding, the Authority does not adopt the Judge's
statement that " . . . there is no appreciable difference between
national consultation and national negotiations."
/4/ The Authority has modified the Notice so that it conforms with
the Order and addresses the violation found.
/5/ The name appears as amended.
/6/ Claiming surprise at the testimony of its own witness Mr.
DeGeorge, Respondent sought to impeach that testimony by calling several
witnesses including Mr. Paul Arca, Mr. Irving L. Becker and Mr. Herbert
R. Doggette. While the claim of surprise is well taken, I find no
reason on this record to discredit the testimony of Mr. DeGeorge. Mr.
DeGeorge displayed no hostility while on the stand and related only his
understanding as to the meaning of the March 1, 1979 memorandum and what
his understanding as to the amount of time used by union senior
officials at that time was. It is noted Mr. DeGeorge was the
Respondent's chief spokesman responsible for carrying forth its position
on official time during that period and his testimony conveyed what his
opinion was at the time of preparation and signature of the memorandum.
I specifically would not rely on Mr. DeGeorge's not having conveyed all
his understanding of what the memorandum meant, for it appears that the
deal had been struck and the memorandum clearly sets out what Respondent
was willing to give concerning official time as of that date.
Therefore, the above testimony of Mr. DeGeorge which is relevant to the
proceeding is credited.
/7/ In its brief the General Counsel requested that certain testimony
of Mr. Arca be discredited. In view of the contradictory testimony of
Mr. Arca, I find that he was familiar with the past practice of allowing
100% official time to the Council President, at least since 1977.
/8/ A similar request made by Harris while he was National Council
Executive Vice-President for official time for November 15 and 16, 1979,
was also denied by Lemke on November 9, 1979 on the basis that "official
time is not granted for internal union business." 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.