[ v17 p461 ]
The decision of the Authority follows:
17 FLRA No. 73 DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, COLUMBIA AREA OFFICE, COLUMBIA, SOUTH CAROLINA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3654, AFL-CIO Charging Party Case No. 4-CA-40009 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 and a supporting brief, and the Respondent filed an opposition thereto. 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. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommended Order. ORDER IT IS ORDERED that the complaint in Case No. 4-CA-40009 be, and it hereby is, dismissed. Issued, Washington, D.C., April 15, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 4-CA-40009 John Kosloske, Esq. Linda B. Backus For the Respondent Pamela B. Jackson, Esq. For the General Counsel Before: WILLIAM NAIMARK, Administrative Law Judge Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on December 14, 1983, by the Regional Director for the Federal Labor Relations Authority, Atlanta, Georgia Region, a hearing was held before the undersigned on January 19, 1984 at Columbia, South Carolina. This is a proceeding which arises under the Federal Service Labor-Management Relations Statute (herein called the Statute). It is based upon a first amended charge filed on November 9, 1983, by American Federation of Government Employees, AFL-CIO (herein called the Union) against Department of Housing and Urban Development, Columbia Area Office, Columbia, South Carolina (herein called Respondent). The Complaint herein alleged, in substance, that Respondent permitted Union representatives access to the Columbia, South Carolina office during non-work hours until about August 9, 1983; that on or about the aforesaid date Respondent refused to permit access by Union representatives to said office during non-work hours. It was further alleged that at no time prior to the said refusal did Respondent notify the Union of such contemplated action or provide the Union with an opportunity to bargain thereon -- all in alleged violation of Section 7116(a)(1) and (5) of the Statute. Respondent's Answer, dated January 4, 1984, denied the existence of a practice, on or before August 9, 1983, whereby Union representatives had access to its office during non-work hours. It also denied the commission of any unfair labor practices. All parties were represented at the hearing. Each was afforded full 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 1. At all times material herein the Union /1/ has been, and still is, the exclusive representative of specified professional and non-professional employees of Respondent. 2. Both the Union's Respondent are parties to a collective bargaining agreement which, by its terms, because effective for a three year period from November 19, 1979. The said agreement, which contained an automatic Renewal clause, was in effect at all times material herein. 3. The Columbia Area Office of HUD has been located, at all times material herein, in the Federal Building at Columbia, South Carolina. The building is open to the public between 7:00 A.M. - 5:30 P.M. on weekdays. At all other hours, and on weekends, the building is locked. 4. Under date of September 4, 1980, Jack Terry, the GSA buildings manager, wrote Respondent that effective September 13 GSA would issue to "Key personnel only" a key card to enter the building after normal hours. Further, the agency was asked to submit a list of persons authorized to receive a key card. 5. In a memorandum dated September 8, 1980, Yvonne Hall, Respondent's Administrative Officer, submitted to Terry a list of supervisors and managers of the Columbia office to whom key cards should be issued. 6. Some of Respondent's supervisors also advised Hall that certain employees needed to gain access to the building before 7:00 A.M., or after it was locked in the evening, to perform job related work. Accordingly, Hall sent a memo to Terry dated September 23, 1980, requesting that key cards be issued to eight named employees of the agency. One of these individuals on the list was Marie Vevik. 7. Record facts show Marie Vevik had been employed by HUD since 1971. Between November, 1980 and September, 1983 Vevik held the position of Contractor Industrialist Specialist. She also was a supervisor from September, 1980 until December, 1981. Since September, 1983 Vevik has held the position of Wage Requirement Assistant, which position is located at Atlanta, Georgia. 8. In September, 1982 Vevik was designated as Union representative. She was president of Local 3654, AFGE, from January, 1983, to November, 1983, and the principal union representative from January, 1983 until October, 1983. 9. Since September 4, 1980, thirteen employees of Respondent have acted as Union representatives at the Columbia Area Office. Six of those representatives were issued key cards at the request of their respective supervisors. One of such representatives was Marie Vevik. In each instance the card was granted to the individual to perform duties relating to the employee's job. Union work had nothing to do with the issuance of the key card. 10. Marie Vevik's hours at the Columbia Area Office ran from either 7:00 A.M. to 3:00 P.M., or from 7:45 A.M. to 3:45 P.M., depending on her flextime schedule. Her testimony reflects that she started using the key card in September, 1982 to conduct union representational duties after hours or on weekends. Vevik used the xerox machine, and worked at her desk, to handle written material re grievances or EEO complaints. 11. Individual Daily Time Reports /2/ of Marie Vevik were introduced into evidence herein for the months of February, June, July, and August, 1983. Attached to each report is an appendix labeled "AFGE Union Representative Monthly Official FTS Report." These show the actual hours worked by Vevik and the date and time spent on union representational business. They reflect that time was spent by Vevik beyond the normal work hours, weekends-- but do not indicate where the time was spent by the union representatives. /3/ 12. According to Vevik, virtually all management officials knew she was performing union work after hours. She testified that the supervisors saw her using the xerox machine. In respect to Franklin Corley, manager of the office, Vevik testified she was sure he knew of her union activities during non-work hours; that she let him know she was there representing employees. As to the discussion with Corley, she testified they occurred at least one or two times between January and October, 1983, but the dates were not known; that the discussions took place in Corley's office. The Manager denied any knowledge of Vevik's performing union duties during non-work hours as well as conversing with her in regard thereto. Vevik also testified she discussed with supervisor Louis J. Wallace that she was putting in a lot of time working after hours on union work. Wallace denied seeing her doing union work, during such hours, or discussing with her the fact that she performed work after hours. Further, Vevik testified she ran into Mr. Nixon, the Housing Director, on weekends and told him she was giving out union material and using the xerox machine-- that she was on union time. James L. McDevitt, Jr. was Vevik's supervisor from December 7, 1981 until November 7, 1983. He testified that he saw Vevik perform representational duties on weekends; that Vevik had a key card when he was reassigned to the Columbia office; that he never discussed with Hall whether it was appropriate for Vevik to conduct union business after hours. /4/ 13. Under date of August 3, 1983, Vevik, as principal Union representative, sent a letter to Hall wherein she requested that Flora Tewksbury, the president-elect of Local 3654, be issued a key card. Vevik stated that Tewksbury, as a principal representative of Local 3654, would be required on occasion to work after hours and on Saturdays to perform union duties. 14. The aforesaid request was denied by Hall in a memorandum dated August 9, 1983, addressed to Vevik. The management official recited therein that key cards are issued only for permitting employees to have access to their work stations during non-duty hours to perform official business for the government. Hall further stated that union officials have key cards because of their "official job requirements, and not because of their union duties." Conclusions General Counsel contends herein that a past practice had been established whereby Respondent permitted the president of Local 3654, AFGE, to use her key card to gain access to the office at times other than normal duty hours for representational duties. It asserts this practice existed from January-August, 1983 with the assent of management. Further, General Counsel maintain that Respondent's refusal to grant the new local union president a key card, to perform union related duties at such times, constituted a unilateral change in the said past practice. Since the Respondent had not bargained with the union as to the change, it is insisted that such failure to do so was violative of the Statute. It is not disputed by the parties, and the law is well settled in the public sector, that no unilateral change in a condition of employment may be made by management without notifying the bargaining representative. Moreover, the employer will be required to bargain as to such change or its impact and implementation. The essential issue for determination herein is whether, as General Counsel asserts, a past practice did exist with respect to permitting Marie Vevik the use of a key card for representation duties during non-work hours. It is also well settled that the parties may establish a condition of employment of practice, or other forms of tacit or implied agreement. In such instance, this practice may not be altered without bargaining thereon. Internal Revenue Service and Brookhaven Service Center, 6 FLRA No. 127; Department of the Navy, Naval Underwater Systems Center, Newport Naval Base, 3 FLRA No. 64. The Authority has, moreover, laid down certain requirements which must be met before it can be concluded that a practice has ripened into a condition of employment. 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 for a substantially long duration. Essential factors in this regard are the knowledge by management of the practice and its consent, expresser implied with regard thereto. Social Security Administration, Mid-America Service Center, Kansas City, Missouri, 9 FLRA No. 33; Department of Health, Education and Welfare, Region V, Chicago, Illinois, 4 FLRA No. 98. Turning to the case at bar, I am not persuaded that between January-August, 1983 /5/ the usage by Vevik of the key card to perform union duties at non-work hours was so notorious or continuous as to warrant concluding that a practice existed in this regard which ripened into a condition of employment. The record reflects, at the outset, that the key cards were issued to employees, including Vevik and other employees who acted as union representatives, solely for the performance of regular work duties at non-work hours. While it is true that Vevik may have used her card at such hours on numerous occasions to perform union duties, the record does not support the conclusion that such practice was consistently exercised with the imprimatur of management. The Time Reports submitted in evidence disclose only several days each in February, July, and August, 1983, when such duties were performed by Vevik after hours or on weekends. /6/ Moreover, Vevik confirms the fact that on frequent occasions she conducted her union tasks, i.e. using the xerox machine or writing reports, after her quitting time (3:30 P.M.), but prior to the time when the building was closed to the public (5:30 P.M.). Thus, it is that the degree of consistency in Vevik's adhering to this practice may not be sufficient to be labeled an employment condition in respect to this particular representative. In respect to Respondent's consent to such practice, based on its knowledge and/or tacit approval thereof, it is asserted by General Counsel that various supervisors observed Vevik after hours and on weekends attending to representational functions. Such observance, however, does not suffice to establish that management permitted Vevik to use her key card at such times for such purposes as a regular occurrence. The fact that this employee was so seen by supervisors, or that she mentioned to a supervisor on occasion the nature of her tasks while on non-duty hours, does not per se establish consent by the employer of such usage of the key card. Record facts disclose that neither Respondent's manager (Corley) nor its Administrative Officer (Hall) was aware that Vevik was using the key card after hours for union work. Further, permission had not been sought of, or granted by, management to use the card for such purposes. The record herein fails to demonstrate that Respondent adhered to a practice of issuing key cards to union representatives for the performance of union tasks after hours. Apart from the fact that no other union official or representatives, to whom key cards were issued, ever utilized them for such purposes, no express permission was ever granted to Vevik to do so. Moreover, I am constrained to conclude no implied or tacit consent was granted by management to use the key cards as contended by General Counsel. The usage by Vevik in this respect at various times, even though brought to the attention of a supervisor, does not convince me that the use of the key cards for union purposes during non-work hours ripened into a condition of employment. Such knowledge by a supervisor is not, in my opinion, equatable with the imprimatur of, nor the sanction by, management as to the use of such cards. General Counsel has not shown by a preponderance of the evidence that such a past practice was established and continued with the blessing or approval by Respondent. See Department of Defense, Department of the Navy, Polaris, Missile Facility Atlanta, Charleston, South Carolina, 6 FLRA No. 67. Thus, I reject the argument that a condition of employment re such permission had existed since early 1983 which was changed later in the year. Accordingly, I conclude Respondent has not violated Section 7116(a)(1) and (5) of the Statute. Having concluded that Respondent has not violated the Statute as alleged, it is recommended that the Authority adopt the following Order: ORDER It is hereby ordered that the Complaint in Case No. 4-CA-40009 be, and the same hereby is, dismissed. WILLIAM NAIMARK Administrative Law Judge Dated: October 12, 1984 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ Although not spelled out in the record, it appears that local 3654 AFGE was the local representative, on behalf of the Union, at the Columbia Area Office. /2/ Referred to a RETARS in the record herein. /3/ The General Counsel introduced in evidence Monthly Official Time Reports showing time worked by Vevik on Union duties during the months of February, June, July, and August, 1983. The log submitted by Vevik to management shows no such duties were performed in June either after hours or on weekends. In February and July the report reflects she worked one time each month in the office after hours. In respect to weekends worked by Vevik in the office, the logs show she worked thereat on union business as follows: 3 days in February, 8 days in July and 7 days in August. /4/ I find that several supervisors were aware that Vevik was doing union work on weekends in the office. This conclusion is buttressed by McDevitt's testimony that he saw her performing representational duties at such times, as well as Nixon's failure to testify and rebut Vevik's testimony that she mentioned it to Nixon while working in the office on weekends. I credit Corley and Hall in regard to the fact that neither was aware that Vevik was using the key card to perform representational duties after hours or on weekends. In respect to Corley, and in the face of his denial, I conclude that the testimony of Vevik as to Corley's knowledge was imprecise. In respect to Hall, this official never reviewed the time reports and never observed Vevik performing union duties at non-work hours. /5/ While Vevik testified she used the card since September, 1982 to perform representational duties, General Counsel contends the usage existed since January, 1983. Moreover, the time Reports introduced into evidence re her time spent on such activities all fell within 1983, and the conversations between Vevik and the supervisors were allegedly held during said year. /6/ No explanation was forthcoming, or appears in the record, as to the failure to adduce the Time Reports for the remaining months in 1982 or 1983.