17:0461(73)CA - HUD, Columbia Area Office, Columbia, SC and AFGE Local 3654 -- 1985 FLRAdec CA

 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.