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) (Authority decision, March 20, 1981)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

Portsmouth Naval Shipyard issued an instruction barring leave without pay for employees who had reached the pay cap during a pay period. The judge dismissed the union’s complaint, finding no established practice remained when the instruction issued. The Authority found that supervisors had continued to grant such leave at their discretion and that the union had not been told this practice ended. It reversed the dismissal, found an unfair labor practice, and ordered the shipyard to rescind the change, give notice, and bargain before making another change.

Decision snapshot

• Authority: 5 U.S.C. § 7116(a)(1); 5 U.S.C. § 7116(a)(5).
• Outcome: Judge’s dismissal reversed; unilateral change found unlawful and prior leave practice restored.
• Key point: Management’s unannounced effort to stop a practice did not end the bargaining duty while supervisors continued it.

Full text (FLRA public release)

[ v05 p352 ]

05:0352(48)CA

The decision of the Authority follows:

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

11. 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.