17:0126(25)CA - HHS, SSA and AFGE -- 1985 FLRAdec CA
[ v17 p126 ]
The decision of the Authority follows:
17 FLRA No. 25 DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No. 2-CA-20183 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, 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 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 /2/ and recommended Order. ORDER IT IS ORDERED that the complaint in Case No. 2-CA-20183 be, and it hereby is, dismissed. Issued, Washington, D.C., March 11, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 2-CA-20183 Daniel H. Green, Esq. For the Respondent Lee Mingledorff, Esq. For the General Counsel William Nussbaum For the Charging Party Before: WILLIAM NAIMARK Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on December 30, 1982 by the Regional Director for the Federal Labor Relations Authority, New York, NY Region, a hearing was held before the undersigned at New York, NY on April 15, 1983. This is a proceeding under the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Statute). It is based on a second amended charge filed on November 24, 1982 by American Federation of Government Employees (herein called the Union), against Department of Health and Human Services, Social Security Administration (herein called Respondent). The Complaint alleged, in substance, that on or about September 15, 1981 Respondent unilaterally changed the past practice of permitting officials of American Federation of Government Employees, Local 3369 to use postage paid (franked) envelopes to send grievances and other labor-management communications to Respondent's officials. Further, that this action occurred without affording the Union, or Local 3369, an opportunity to negotiate as to the substance, impact and implementation of the change - all in violation of Section 7116(a)(1) and (5) of the Statute. In its Answer /3/ Respondent denied the existence of a past practice re the permitted use of franked envelopes, as well as any unilateral change thereof, and the commission of any unfair labor practices in violation of the Statute. All parties were represented at the hearing. Each was afforded an opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed with the undersigned which have been duly considered. Upon the entire record herein, 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 /4/ 1. At all times material herein, the Union has been, and still is, the certified bargaining representative of a consolidated nationwide unit of certain employees of Respondent, including all employees in the District and Branch offices of the Respondent in New York and New Jersey, with specified exclusions as well as employees in the Trenton, New Jersey District office. 2. At all times material herein Respondent has recognized American Federation of Government Employees, Local 3369, as an agent and representative of the Union for the purposes of collective bargaining for certain employees in the State of New York. 3. There are six components of Social Security Administration, Region II. One of these is field operations which has over 100 offices in the New York region. Local 3369 represents employees in about 53 of these district and branch offices. Within the field operations structure of Region II the levels of management are as follows: at the lowest level are the branch and district managers; above them is the area director who is in charge of the district offices; and the regional office is headed by a commissioner and an assistant regional commissioner. 4. During the period December 1977 - December, 1979 John Riordan was an on-site union representative at the South Bronx, NY District office. He was also third vice-president for grievances of Local 3369. As on-site representative Riordan, testified he used franked /5/ envelopes (postage prepaid) a few times per month, or less, when dealing with management re employee grievances, negotiating with the agency, filing an unfair labor practice charge or representing an EEO complainant. In December, 1979 Riordan became President of Local 3369. 5. William N. Nussbaum, President of Local 2369 and President of New York-New Jersey Council of Locals, AFGE, testified /6/ to a meeting held in December, 1979 or early 1980 attended by himself, Riordan, and two management officials: Nancy Williams (labor relations staff member) and Norman Seifer (Deputy Assistant Regional Commissioner). He recalled that the parties agreed no problem existed re continuing the piggyback /7/ system of sending mail. Further, that management said the union could not use penalty envelopes for internal union business. With respect to using such envelopes for labor-management communications, the management officials said they were not sure about it - they would look into the matter. /8/ 6. Nancy Williams testified that, during negotiating sessions in 1979, the topic of using penalty envelopes by the union was discussed. According to her testimony, management permitted the piggyback mail use. With respect to other mail, the employer sanctioned penalty envelope use on a case to case basis. Thus, if the Union wanted to submit proposals or make comments voluminous in nature, management would accede to a request by the bargaining representative to use penalty mail. Williams stated, moreover, that the Union did not prevail in its request, during 1979 negotiations, to use penalty envelopes for communications between it and management. Further testimony from this witness reveals that she did learn in 1980 (before mid-May) that Local 3369 was using penalty mail on its own initiative for communications with management. She gained this knowledge prior to her reassignment in May, 1980 to the Baltimore office. Williams testified she contacted her headquarters office for advice and guidance on how to proceed. She was told that the office would have to check with the postal authorities or the general counsel; that it would advise her "on what the agency's position was". No final decision was furnished Williams before her transfer to Baltimore, and she gave no specific warnings to Nussbaum re the use of penalty envelopes. The discussions with the Union representative were, according to Williams, limited to the piggyback system. Arrangements with Nussbaum precluded mass mailing and no individual envelope for union correspondence. In response to the query as to whether the agency ever permitted Local 3369 the use of penalty envelopes, Williams replied: "There have been occasions where, if we felt there was sufficient interface with management, we would on a case by case basis authorize the use of it, but there was never a blanket authorization for use of the frank by the union, by any of the unions in the region." 7. Riordan testified that, upon assuming the presidency of Local 3369, he commenced using penalty envelopes in 1980 on a daily basis when communicating with management re labor relations matters. In so doing, he wrote letters to the regional commissioner, assistant regional commissioner, deputy assistant regional commissioner, area directors, district and branch manager. Further, the record reveals that penalty envelopes were stored in the local's supply desk, which is how Riordan procured them. 8. Deputy Assistant Regional Commissioner Norman Seifer testified there had never been a policy sanctioning use of penalty envelopes by Local 3369 on its own initiative. Further, correspondence was opened by secretaries and management did not receive the envelopes. In 1980 Seifer became aware that Local 3369 was using postage paid mail in its correspondence. He instructed labor relations specialist Ron Sobel to contact the union and tell them it was not an acceptable practice. Seifer also told Sobel to call headquarters and ascertain whether it was legal for Local 3369 to use penalty mail. While awaiting word as to the legality thereof, the agency had - according to Seifer - made the union aware of the fact that it did not sanction penalty envelopes. Headquarters did advise that it wanted to do some additional research on the problem. Finally, a response was received from SSA or Postal Service indicating that the penalty mail should not be used by Local 3369. 9. Between January and May, 1981 - as indicated by G.C. Exhibits 5(a) - 5(s) - Union President Riordan wrote letters to management re such matters as grievance, arbitration, negotiability concerns, request for official time, information under FOIA, a manual, and waiver of fees for copying certain materials. All of the foregoing were sent in penalty envelopes. Of these letters, four were sent to Alex Bussey, Assistant Regional Commissioner, one each to Area Directors Howard Feuer and John Moorehead, one to Martin Weinberg, District Director, one to the Regional Commissioner, and one to the Federal Mediation and Conciliation Service. 10. In a letter dated January 2, 1981, Area Director Feuer wrote Stanley Chodos, 5th vice-president for grievances for Local 3369. Feuer stated that Chodos was being granted official time to discuss a grievance at the East Bronx office. He reminded Chodos that the use of penalty envelopes for personal business was prohibited and a grievance is considered a personal matter. 11. By letter dated May 1, 1981, addressed to William Nussbaum, President of New York-New Jersey Council, Assistant Regional Commissioner Bussey stated that the Council is continuing to use postage paid (franked) envelopes for unauthorized purposes. Five examples of such use were set forth therein involving (a) an invitation to a hearing on "the Geoffrey Keating case" to the Acting Director of Human Resources as well as to the Acting Associate Commissioner, OMBP; (b) copies of the "Federal Unionist" mailed to the aforesaid Acting Director of Human Resources and to the Commissioner of Social Security; /9/ (c) the continuing use by Local 3369 of penalty envelope to mail internal correspondence to on-site representatives. Bussey reminded Nussbaum in the letter that the use of such envelopes (postage paid) is prohibited and requested the cessation of such practice. 12. A reply to the foregoing letter was made by Nussbaum in a letter dated May 4, 1981. The Council representative stated therein he was unaware that the Council engaged in such a practice; that the use of penalty envelopes was discussed with management many years ago, and it was agreed the Union could use a piggyback system for interoffice mailing; that management recognized other areas where it was permissible to use penalty envelopes, i.e., mailing 3rd step grievance letters to area directors or labor relations correspondence to Regional offices. Nussbaum further stated that other uses were authorized, and those were accepted without objection by management. He referred to the fact that the five examples were referable to one local; that representatives of other locals used penalty envelopes in ways not cited by Bussey in his May 1, 1981 letter. Nussbaum concluded by stating that, while it is a local union matter, the Council would be glad to meet and discuss the issue. 13. Labor Relations Specialist Ron Sobel, who works under the direction of Seifer and Assistant Regional Commissioner Alex Bussey, assumed his position in May, 1980 when he replaced Nancy Williams. He testified to a meeting held in June, 1981 attended by himself, Seifer, and union representatives Riordan and Richard Kirchner. The union officials stated thereat they believed the use of penalty envelopes was permitted, and Seifer advised them it was only acceptable in piggyback situations or where management specifically gave the union an envelope. Sobel testified, further, that Riordan said he thought Seifer was wrong - there may have been some changes. At Riordan's request, Seifer agreed to check into it again and ascertain whether the union was now authorized to use penalty envelopes. Sobel also testified that Local 3369 was supplied with penalty envelopes only (a) in piggyback situations, (b) where an arbitration case was pending, and management would send the union a postage paid envelope in which to respond. Further, that prior to May-June, 1981 Respondent was not doing any review of the mail - what was coming in. In June, 1981 the agency realized it had a problem re the use of penalty mail. It conducted a review which showed that, except for Local 3369, the use privilege was being properly conducted. According to Sobel the use of penalty envelopes was only permissible in situations involving piggyback mail and where management furnished such envelope for reply, as in an arbitration matter. 14. A meeting occurred in June or July, 1981 between representatives of Local 3369 and management. Present for the former were Riordan and Richard Kirchner, executive vice-president. Representing the agency were Ron Sobel and Norman Seifer. Testimony by Sobel reflects that the local's officials stated they thought they were permitted to use penalty envelopes. Seifer retorted there had been no authorization to use such envelopes except in piggybacking or situations where management provided the union with an envelope. He agreed, upon Riordan's request, to check into it and see if it was now authorized. Sobel testified the local was usually supplied with penalty envelopes when the parties were working out language on an arbitration case, or for use in piggyback situations. Riordan testified to a somewhat different version of what occurred at the aforesaid meeting. He stated that a discussion ensued re penalty envelopes, and Seifer informed the union representatives these envelopes could not be used for internal mail. The parties disagreed on whether the agency had to pre-pay for the envelopes. In regard to using the penalty mail for labor-management communications, Riordan commented it had been the practice for a long time and Seifer never brought up the matter before. The latter, according to Riordan, replied there was a question as to its legality and he would "get back" to the union officials after checking it out. The use of such envelopes for labor-management matters was left open, and Riordan continued to send mail of this nature in penalty envelopes. /10/ 15. By letter dated September 15, 1981 Assistant Regional Commissioner Bussey wrote union official Nussbaum reiterating his concern about the use of postage paid agency envelopes by unions. Bussey stated that the latter are not authorized such use; that this policy is based on the U.S. Postal Service Domestic Mail Manual, guidelines issued by GSA, and on SSA Directors and Personnel Guide - all of which limit the use of such envelopes and mail services to official business. After setting out the language of Part 137.22 of the Domestic Mail Manual, Bussey wrote that union officials are not acting as officials or employees of the Federal Government and are not authorized official mailing privilege. He further commented that such officials may only use penalty envelopes if specifically provided with them. The letter closed by indicating that Local 3369 has continued to use such envelopes for unauthorized purposes, and Bussey offered to meet with Nussbaum to obtain compliance with Federal Regulations. 16. A meeting was scheduled with Riordan to discuss the use of penalty mail. It was cancelled by the Union since Riordan wanted to obtain legal advice on the matter. Although a second meeting was arranged, Riordan asked that it not be held because he was awaiting work from the national office. A third meeting was scheduled for October 20, 1981 but it was never held. 17. In a letter dated October 20, 1981 Bussey wrote Nussbaum that the October 20 meeting was pointless since Local 3369 continued the improper use of postage paid mail. Bussey stated that, as an example, management received dues deduction requests from the union in such envelopes. He reiterated that union officials are not permitted to use postage paid envelopes except where management has supplied one for purposes of responding to a specific request. 18. By letter dated November 5, 1981 the Regional Commissioner (SSA) wrote the Manager-Postmaster in New York City re the case by a union of postage paid envelopes for "union activities". He pointed out that one union official used such mail to write various members of Congress. The Commissioner asked for a definitive answer re the use of penalty envelopes for union activities. 19. Postal Inspector C. C. Hallien wrote a letter dated November 24, 1981 to Riordan re the "use of penalty envelopes for union business". The Inspector informed Riordan that such use was not in accordance with Postal Regulations. He requested the union representative to cease such use and stated that reimbursement might be sought for unpaid postage in the future. 20. The Acting Manager-Postmaster, in a letter dated November 25, 1981, replied to the Regional Commissioner's letter of November 5 re the use of postage paid mail for union activities. He informed the Commissioner as follows: "Only official mail relating exclusively to the business of the Government of the United States mailed by officers of the executive branch may be sent as Official Federal Government Mail. The example you submitted of a mailing made by an employee organization does not fall within this definition of official mail and is, therefore, prohibited by postal regulation." 21. Riordan wrote Hallien on December 11, 1981 stating that the union does not use penalty envelopes for "Union business." He stated that they have been used for official government business relating to labor-management relations i.e. communications with higher agency officials, processing employee complaints, and grievances. Riordan asked that he be apprised as to whether the use of such envelope, even when supplied by the agency, may be proper on the union's part. 22. By letter dated December 14, 1981 Bussey wrote Riordan that the use of penalty envelopes for any union mail, including inter-office mail, is illegal based on information management received from the Post Office. Bussey stated that its use must stop immediately or action would be taken by management. 23. Warren C. Fretwell, executive vice-president of American Federation of Government Employees, Local 3342, wrote a letter on December 23, 1981 to Ted Troy, Director, Office of Mail Classification (U.S. Post Office). The union official referred to the fact that Social Security Administration advised him the Postal regulations prohibited the use of "franked" envelopes by Government employees who are addressing concerns in their capacity as employee representatives. Fretwell commented he thought such prohibition difficult to believe, and he requested a formal opinion re the use by employee representatives of the "franking privilege". 24. A reply letter dated February 1, 1982 was sent by Troy to Fretwell re the use of official mail. The Director adverted to Section 137.22(a) Domestic Mail Manual, the postal regulation which specifies that officers of the U.S. Government may send such mail when it relates exclusively to U.S. Government business. Further, that under Section 137.21 of said Manual departments or agencies must reimburse the Postal Service the equivalent of postage and fees due for the official mail service they receive. In regard to the propriety of matter sent as Federal Government mail, Troy stated they rely upon the departments or agencies to determine whether it is entitled to be sent as official mail. He concluded, "Thus, it is appropriate for the Social Security Administration to make its own determination with respect to what matter will be sent as official SSA mail and paid for out of its appropriations or funds." (Underscoring supplied.) 25. Respondent's District Manager, Robert Berger, sent a letter dated April 12, 1982 to Riordan. Berger informed the union representative that he proposed to reprimand the latter for insubordination in the continued use of postage paid U.S. Government penalty envelopes after being advised to discontinue this practice. The letter stated that on September 15, 1981 Bussey had written Nussbaum advising him that such envelopes are, under postal regulations, only to be used for official business; that Bussey's letter had notified Nussbaum that union officials did not act as officials of the Federal Government and thus were not authorized to use this mailing privilege unless specifically provided such envelopes. Berger recited that its use had continued and a letter was sent on October 20, 1981 to Nussbaum and all members of the Council advising them that union officials were prohibited from using such envelopes except where management provided one for responding to a specific request. The District Manager stated, further, that the Assistant Commissioner had written Riordan on December 14 that the use of postage paid envelopes for any union mail must stop; that despite those notifications, the local union officials continued its practice. Berger gave as examples of the use by the Local of penalty envelopes the following: (a) forwarding dues withholding requests, (b) communication with the Federal Labor Relations Authority, (c) transmittal of Women's Programs and AFL-CIO materials, (d) other correspondence between union officials, (e) union initiated correspondence with Federal management official. 26. Management issued a reprimand to Riordan in May, 1982. /11/ 27. By letter dated March 8, 1983 Peter D. Spencer, Respondent's Director of Labor Relations, wrote Author B. Johnson, spokesperson AFGE General Committee re Postage-Paid Envelopes. Spencer stated that Respondent's January 17, 1983 letter /12/ was a reminder that unions are not authorized to use such envelopes. He further commented that although management infrequently permitted AFGE representatives to do so, it did not constitute a past practice. Moreover, SSA did not agree to such use by said representatives. Spencer concluded by stating that, while officials of the U.S. Government are authorized to use penalty envelopes, unions are not; that union officials may use such envelopes only when expressly authorized by management to do so. Conclusions There are two primary issues for consideration herein: (1) whether a past practice existed herein of allowing Local 3369 to use penalty envelopes or mail to communicate with Respondent re labor-management matters; (2) assuming arguendo such practice did exist as a condition of employment, whether Respondent was obligated to, and failed to, negotiate with Local 3369 regarding the prohibited use by the union of penalty envelopes for such matters. With respect to the first issue, General Counsel takes the position that the agency permitted the use of such postage paid mail by Riordan from December, 1979 to September 15, 1981. It contends management did not show disapproval of such use by Local 3369; that Riordan was not made aware of any prohibition thereof; and that, in truth, the question of such use was under study by management. The Authority has recognized that parties may establish a condition of employment by practice, or other form of tacit or implied agreement. Moreover, once this practice has been established and becomes a term of employment, it may not be altered by either party without bargaining thereon. Internal Revenue Service and Brookhaven Service Center, 6 FLRA No. 127 (1981); Department of the Navy, Naval Underwater Systems Center, Newport Naval Base, 3 FLRA No. 64 (1980). The law is also settled in the public Sector that to establish a practice - which ripens into a condition of employment - certain requirements must be met. Thus it must be consistently exercised for an extended period of time and followed by both parties, or followed by one party and not challenged by the other over a substantially long duration. Social Security Administration, Mid-America Service Center, Kansas City, Missouri, 9 FLRA No. 33 (1982). As aptly put by Judge Devaney in Department of Health, Education and Welfare, Region V, Chicago, Illinois, 4 FLRA No. 98 (1980), a practice to constitute a condition of employment must: (a) be known to management; (b) responsible management must knowingly acquiesce; and (c) such practice must continue for some significant time. Turning to the case at bar, it is necessary to resolve the question as to whether the use of penalty envelopes by Local 3369 ripened into a practice which may be deemed a condition of employment. While not free from doubt, I am persuaded that, based on the factors considered infra, the record does not support the conclusion that management knowingly approved the use by Riordan of postage paid mail for communications with Respondent. That it entertained some doubt of the legality thereof is not denied. However, I am reluctant to conclude that such uncertainty was equitable with an acceptance by Respondent that Local 3369 was entitled to use penalty envelopes. Record facts reveal that prior to 1980 the local union involved herein had not been given carte blanche to use postage paid envelopes. The policy, as established, called for the bargaining agent to use such privilege on a 'case-to-case' basis. When management sought a response from the union re an arbitration matter, or the like, it included such penalty envelope in correspondence to the union for its use. Further, in contract negotiations on a regional level in 1976 management acceded to the use of piggyback mail by the union representatives in New Jersey. This privilege was accorded Local 3369 in 1977. Upon Riordan's becoming President of Local 3369 in December 1979 and assuming his duties in January, 1980, the parties again discussed the use of penalty envelopes. New Jersey Council representative Nussbaum testified that at a meeting around that time management declared the union could use such mail for labor relations matters only. He also testified upon cross-examination that, at that meeting, management representative stated they were not sure - they would look into the matter. On the other hand, Nancy Williams, who attended this session, testified no such privilege re the use of penalty mail, was ever extended to Local 3369 or any other local union. The foregoing does not convince me - especially since Nussbaum's own testimony leaves it in doubt - that at this early meeting, upon Riordan's becoming President of Local 3369, the agency accorded the union representative full privilege to use penalty mail in dealing with management in the future. General Counsel insists, however, that Riordan embarked on a daily practice of using such envelopes which the agency tacitly approved during its use by Local 3369 for a year and a half. In support of this contention it adverts to 19 letters, introduced as exhibits, which were sent to the regional and other offices between January - May, 1981. All of those were sent in penalty envelopes, and they dealt with union concerns involving grievances and matters wherein Local 3369 represented employees during their employment. It is maintained by General Counsel that no explicit word was received from Respondent until September, 1981 prohibiting the use of such envelopes; that any communications by management prior thereto did not contain that prohibition; and that Local 3369 was entitled to conclude the practice was sanctioned by the agency. The Authority has refused to recognize the existence of a past practice, however, unless actual knowledge thereof by management was established. See Department of the Treasury, Internal Revenue Service, Cleveland, Ohio, 3 FLRA No. 106 (1980). The record herein reflects that much of the incoming mail is separated by the secretaries from the envelopes, and the latter are not seen by agency officials who need the mail. Thus, for a considerable period of time after Riordan commenced using penalty mail, it appears that many of the addressees (management officials) would not have known or been aware of the practice by Local 3369. It is also urged that inasmuch as Respondent's letter of May 1, 1981 referred to several specific uses by Local 3369 of such mail - all of which involved matters other than labor-management relations - the agency impliedly approved the use of such envelopes when communicating with Respondent on labor affairs. While such an inference might be drawn, I am not satisfied that the mention of those specific instances per se establishes clear consent by the agency to use this mail as contended. It is also inferable that management was not, as heretofore mentioned, informed that Local 3369 used penalty envelopes in its communications. As indicated in Department of the Treasury, Internal Revenue Service, Cleveland, Ohio, supra, a practice must be open and notorious before management may be charged with its existence. Moreover, the record is replete with evidence to show that Respondent frowned upon Local 3369 using penalty mail except when provided with such an envelope. Thus, on January 2, 1981 Area Director Feuer explicitly stated, in his letter to Stanley Chodos, a vice-president of Local 3369, that the use of penalty envelopes by the union for discussing or considering grievances with management was prohibited. Further, Deputy Assistant Regional Commissioner Seifer, when he learned in 1980 of the fact that Local 3369 sent its mail in postage paid envelopes, instructed labor relations specialist Sobel to advise the union this usage was not acceptable. Although the record does not reflect that this particular message was imparted to Riordan, it does demonstrate that management did not condone or approve of the practice. /13/ In June 1981 Seifer again reported to the union that, despite the latter's belief to the contrary, management had never sanctioned the use of penalty envelopes except for piggyback mail and when such an envelope was provided by Respondent for a response to it. Prior to maintaining a claim that an agency has changed a past practice unilaterally and thus demonstrating an unfair labor practice, the General Counsel assumes the burden of establishing the existence of such past practice. In my opinion that burden has not been met in the instant case. The record does not support a finding that Respondent knowingly and consistently approved the use by Local 3369 of penalty envelopes when communicating with management re labor matters. See Department of Defense, Department of the Navy, Polaris Missile Facility Atlantic, Charleston, S.C., 6 FLRA No. 67 (1981). It is incumbent upon General Counsel to show that such use was accepted by the agency and adopted by it as an agreed-upon practice. Without such acknowledgement and condonation one can scarcely deem the custom to be a practice which has ripened into a condition of employment. The facts herein belie such acceptance. A careful review of the testimony and exhibits herein induces me to believe that, at best, a misunderstanding existed on the part of Local 3369 re the use of penalty mail. This, however, falls short of a necessary factor to establish a past practice, i.e. that management knowingly consented to same. I conclude that the burden of proving the existence of a past practice - as recognized by the Authority - in respect to the alleged use of penalty envelopes by Local 3369 has not been met. In view of the foregoing, I conclude Respondent did not change a past practice as alleged in the Complaint and did not violate Section 7116(a)(1) and (5) of the Statute as contended therein. Accordingly, I recommend dismissal of the Complaint in its entirety. WILLIAM NAIMARK Administrative Law Judge Dated: February 1, 1984 Washington, DC --------------- FOOTNOTES$ --------------- /1/ In agreement with the Judge's conclusion, the Authority denies General Counsel's motion for summary judgment based on the Respondent's untimely answer to the complaint. In applying section 2423.13(b) of the Authority's Rules and Regulations and finding good cause for considering the Respondent's delayed answer, the Authority notes particularly, as found by the Judge, that the Respondent did advise the General Counsel prior to the hearing as to its defenses to each allegation of the complaint; that there has been no showing that the General Counsel was prejudiced in any manner by the delay; and that the Respondent's answer stated a meritorious defense to the complaint, as found by the Judge in dismissing the complaint. (2) The Authority adopts the Judge's conclusion that the Respondent did not change a past practice concerning the use of franked envelopes. In so ruling, the Authority notes the General Counsel's exception to the Judge's reliance on "knowing consent" as the standard for creation of a past practice. While the Authority agrees that knowing acquiescence over a significant time may indicate past practice, the record does not support a finding of knowing acquiescence. Instead, the record herein is replete with Respondent's prompt efforts to terminate the use of franked envelopes upon learning of this practice by union officials. Additionally, in adopting the Judge's conclusion that there was no change in past practice, the Authority does not reach and should not be construed as passing upon whether the Respondent would have violated section 7116(a)(1) and (5) of the Statute if it had discontinued a past practice of allowing franked envelopes to be used by the Union for labor-management communications. /3/ The Answer, although due on January 24, 1983, was not filed until the date of the hearing herein. (Respondent's Exhibit 1). General Counsel filed a Motion for Summary Judgment since, under Section 2423.13(a) of the Rules and Regulations, the Answer was not filed within 20 days after the Complaint was served. Moreover, under Section 2423.13(b) of said Rules the failure to file such an answer constitutes an admission of the allegations in a complaint. Counsel for Respondent stated at the hearing that he believed an answer was filed, but conceded no certification of service was on hand. Further, it is undisputed that Respondent's Counsel informed General Counsel, prior to the hearing, of the defenses as to each allegation in the Complaint. In view of the fact that General Counsel was so apprised, and no new matter introduced by the Answer, the undersigned denied the Motion for Summary Judgment at the hearing. In its brief General Counsel renews its Motion in that regard. For the reasons advanced by the undersigned, supra, and since no prejudice is shown to exist, the Motion for Summary Judgment is again denied. /4/ Note should be taken that the complete set of marked exhibits will be found in those exhibits herein labeled "DUPLICATE". Those labeled "ORIGINAL" are not all properly marked. /5/ "Franked" mail, under 39 USCA 3210, refers to mail used by members of Congress. Other mail, as used by agencies or department, under 39 USCA 3202 is designated as "penalty" mail. The terms have been used interchangeably by the parties as well as the witnesses. However, the undersigned has referred to such mail or envelopes used by Local 3369 herein, and which is the subject of the dispute, as "penalty" or "postage paid". /6/ Nussbaum was called as adverse witness by Respondent. /7/ "Piggyback" system is described as a means whereby Local 3369, when communicating with union officials or employees in other districts or branches, includes its mail in a large envelope sent by management to such other district or branch. In effect, this combines the internal mail of the union with that being sent by the agency. The union does not utilize piggybacking to communicate with the regional office since mail is not sent there from the district. /7/ Nussbaum also testified that, at this meeting, management said that penalty envelopes could be used for labor-management correspondence. /9/ An FLRA decision, published by Local 3369, was also included in the letter to the Commissioner. /10/ Riordan sent three letters to management which were dated June 22, 1981. One concerned a request for filing cabinets, a second letter sought the use of a private room to speak with employees during a forthcoming visit to the Brooklyn office, and the third letter enclosed night differential claim forms with a request for a status report. All three letters were sent in penalty envelopes. /11/ The exact nature or wording of the reprimand does not appear in the record, nor was it introduced as an exhibit herein. /12/ This particular letter (January 17, 1983) was not introduced as an exhibit. /13/ Cf. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 5 FLRA No. 48 (1981) where managements' efforts to discontinue a practice was not communicated to the union. In contrast, however, to the case at bar, the attempts to discontinue a practice was not clearly communicated to supervisors. Moreover, some supervisors continued the practice. The practice in the cited case was clearly established, and, in that respect, is also distinguishable from the situation herein.