[ v06 p372 ]
06:0372(67)CA
The decision of the Authority follows:
6 FLRA No. 67 DEPARTMENT OF DEFENSE DEPARTMENT OF THE NAVY POLARIS MISSILE FACILITY ATLANTIC CHARLESTON, SOUTH CAROLINA Activity and LOCAL 2298, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Petitioner Case No. 4-CA-435 DECISION AND ORDER THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION AND ORDER IN THE ABOVE ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICE 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 ORDER, AND A SUPPORTING BRIEF, AND THE RESPONDENT FILED AN ANSWERING BRIEF THERETO. PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT REGULATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE JUDGE AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS. THE COMPLAINT ALLEGES THAT THE RESPONDENT, THE POLARIS MISSILE FACILITY ATLANTIC ("POMFLANT"), VIOLATED SECTION 7116(A)(5) AND (1) OF THE STATUTE BY UNILATERALLY CHANGING EXISTING CONDITIONS OF EMPLOYMENT WHEN IT REFUSED TO GRANT OFFICIAL TIME TO ITS EMPLOYEE, THE PRESIDENT OF UNION LOCAL 2298, LESTER BANEGAS, WHILE REPRESENTING EMPLOYEES OF THE NAVAL WEAPONS STATION (NWS), A SEPARATE ACTIVITY. IT FURTHER ALLEGED THE STATUTE WAS VIOLATED BY FAILURE TO GIVE THE UNION NOTICE OR AN OPPORTUNITY TO BARGAIN CONCERNING THE ALLEGED CHANGE AND/OR IMPACT AND IMPLEMENTATION OF THIS CHANGE. THE RESPONDENT DENIES THAT ITS ACTIONS CONSTITUTED AN UNFAIR LABOR PRACTICE. THE RECORD DISCLOSES THAT IN JANUARY OF 1977, THE RESPONDENT ISSUED A DIRECTIVE WITH THE ACQUIESCENCE OF THE UNION WHICH DEFINED OFFICIAL TIME AS "ALL TIME GRANTED EMPLOYEES BY MANAGEMENT TO PERFORM REPRESENTATIONAL FUNCTIONS FOR THIS ACTIVITIES (SIC) (POMFLANT'S) EMPLOYEES. . . . " LESTER BANEGAS, A POMFLANT EMPLOYEE, ATTENDED THE MONTHLY CAPTAIN'S MEETINGS AT NWS ON OFFICIAL TIME AS A UNION REPRESENTATIVE FOR NWS EMPLOYEES SUBSEQUENT TO THAT DIRECTIVE, FROM JUNE OF 1977 TO NOVEMBER OF 1979. THE JUDGE FOUND DESPITE BANEGAS' ATTENDANCE ON OFFICIAL TIME ON BEHALF OF NWS EMPLOYEES, THAT NO PAST PRACTICE HAD BEEN ESTABLISHED TO GRANT OFFICIAL TIME TO THE RESPONDENT'S EMPLOYEES FOR THEIR REPRESENTATION OF EMPLOYEES OF SEPARATE EMPLOYER-ACTIVITIES, AS THERE WAS INSUFFICIENT EVIDENCE THAT THE RESPONDENT'S SUPERVISORS KNOWINGLY OR CONSISTENTLY ALLOWED LESTER BANEGAS OFFICIAL TIME TO REPRESENT EMPLOYEES OTHER THAN POMFLANT EMPLOYEES. THE JUDGE BASED THAT DETERMINATION UPON CREDITED EVIDENCE THAT BEFORE BANEGAS ATTENDED THE CAPTAIN'S MEETINGS, HE TOLD RESPONDENT'S SUPERVISORS THAT HE WAS GOING "SOUTHSIDE," A COMMON TERM FOR THE CIVILIAN PERSONNEL OFFICE AT THE NWS BUILDING, AND RESPONDENT'S SUPERVISORS ASSUMED HE WAS GOING TO THE CIVILIAN PERSONNEL OFFICE AT NWS TO REPRESENT POMFLANT EMPLOYEES RATHER THAN NWS EMPLOYEES. THE JUDGE'S FINDING WAS ALSO BASED ON THE FACT THAT POMFLANT AND NWS SHARE A COMMON CIVILIAN PERSONNEL OFFICE LOCATED AT THE NWS FACILITY, THAT BANEGAS TOOK LEAVE WITHOUT PAY WHILE NEGOTIATING THE COLLECTIVE BARGAINING AGREEMENT FOR EMPLOYEES AT NWS, AND THAT WHENEVER HE WENT TO THE NWS CAPTAIN'S MEETINGS, BANEGAS MARKED A LABOR COST CODE ON HIS TIME CARD WHICH INDICATED HE WAS REPRESENTING POMFLANT EMPLOYEES. THE AUTHORITY AGREES WITH THE JUDGE THAT THE GENERAL COUNSEL FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT THE RESPONDENT'S SUPERVISORS KNOWINGLY AND CONSISTENTLY ALLOWED BANEGAS OFFICIAL TIME WHILE HE WAS REPRESENTING NWS EMPLOYEES AT THE CAPTAIN'S MEETINGS. HOWEVER, THE GENERAL COUNSEL IN ITS EXCEPTIONS ARGUES THAT A PAST PRACTICE HAS BEEN ESTABLISHED WHEN BANEGAS' PREDECESSOR, HAROLD DENTON, WAS UNION PRESIDENT, AND THAT SUCH PRACTICE CONTINUED AFTER THE JANUARY 1977 DIRECTIVE AND WHILE BANEGAS WAS PRESIDENT DUE TO THE UNWITTING ACQUIESCENCE OF BANEGAS' SUPERVISORS. THE UNCONTRADICTED FACTS IN THIS REGARD SHOW THAT WHILE DENTON WAS PRESIDENT OF UNION LOCAL 2298 FROM MARCH OF 1976 TO MARCH OF 1977, HE ATTENDED THE CAPTAIN'S MEETINGS AT NWS ON OFFICIAL TIME, WITH THE KNOWLEDGE OF HIS SUPERVISOR AT LEAST UNTIL JANUARY OF 1977. DENTON NEVER FILLED OUT A LEAVE SLIP TO ATTEND THESE MEETINGS. THE RESPONDENT'S DIRECTIVE IN JANUARY OF 1977 LIMITED THE USE OF OFFICIAL TIME TO REPRESENTATIONAL PURPOSES FOR POMFLANT EMPLOYEES ONLY. UPON RECEIPT OF THIS NOTICE DENTON INITIALED AND SIGNED IT "O.K.", AND RETURNED IT TO THE RESPONDENT. HOWEVER, THE EVIDENCE DOES NOT SUPPORT A FINDING THAT DENTON'S SUPERVISOR KNOWINGLY CONTINUED TO GRANT DENTON OFFICIAL TIME TO ATTEND ANY NWS MEETING AFTER THE JANUARY NOTICE. BASED UPON THE FOREGOING, THE AUTHORITY CONCLUDES THAT THE GENERAL COUNSEL HAS NOT SHOWN BY A PREPONDERANCE OF THE EVIDENCE THAT A PRACTICE WAS ESTABLISHED WHILE DENTON WAS UNION PRESIDENT WHICH WAS CONTINUED THEREAFTER. COMPARE DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, OFFICE OF PROGRAM OPERATIONS AND FIELD OPERATIONS, SUTTER DISTRICT OFFICE, SAN FRANCISCO, CALIFORNIA, 5 FLRA NO. 63(1981). ACCORDINGLY, THE AUTHORITY SHALL ORDER THAT THE COMPLAINT BE DISMISSED. ORDER IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 4-CA-435 BE, AND IT HEREBY IS, DISMISSED. ISSUED, WASHINGTON, D.C., AUGUST 5, 1981 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ DECISION FOLLOWS -------------------- NONA J. JORDAN FOR THE RESPONDENT JAMES R. PUHGER, ESQ. FOR THE GENERAL COUNSEL LESTER BANEGAS FOR THE CHARGING PARTY BEFORE: RANDOLPH D. MASON ADMINISTRATIVE LAW JUDGE CASE NO.: 4-CA-435 DECISION THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101, ET SEQ., AS A RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON JULY 29, 1980 BY THE REGIONAL DIRECTOR, REGION IV, FEDERAL LABOR RELATIONS AUTHORITY, ATLANTA, GEORGIA, AGAINST THE DEPARTMENT OF DEFENSE, DEPARTMENT OF THE NAVY, POLARIS MISSILE FACILITY ATLANTIC, CHARLESTON, SOUTH CAROLINA ("RESPONDENT"). THE COMPLAINT ALLEGED THAT RESPONDENT UNILATERALLY CHANGED EXISTING CONDITIONS OF EMPLOYMENT BY REFUSING TO GRANT OFFICIAL TIME TO THE UNION PRESIDENT WHILE REPRESENTING EMPLOYEES OF ANOTHER BARGAINING UNIT LOCATED AT ANOTHER ACTIVITY. THE COMPLAINT ALLEGES A VIOLATION OF SECTION 7116(A)(5) AND (1) OF THE STATUTE DUE TO THE RESPONDENT'S FAILURE TO GIVE THE UNION NOTICE OR AN OPPORTUNITY TO BARGAIN CONCERNING THIS ALLEGED CHANGE AND/OR THE IMPACT AND IMPLEMENTATION OF THIS CHANGE. SINCE NO VIOLATION OF SECTION 7131 OF THE STATUTE HAS BEEN ALLEGED AT ANY TIME DURING THIS PROCEEDING, THAT SECTION WILL NOT BE DISCUSSED HEREIN. RESPONDENT DENIES THE ALLEGATION CONTAINED IN THE COMPLAINT. A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT CHARLESTON, SOUTH CAROLINA, ON OCTOBER 2, 1980. ALL PARTIES WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND EXAMINE AND CROSS-EXAMINE WITNESSES. RESPONDENT AND COUNSEL FOR THE GENERAL COUNSEL FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED. BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED ORDER: /1/ FINDINGS OF FACT AT ALL TIMES MATERIAL HEREIN, LOCAL 2298, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, ("UNION") HAS BEEN THE EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT OF EMPLOYEES OF THE RESPONDENT. THE UNION IS ALSO THE EXCLUSIVE REPRESENTATIVE FOR TWO OTHER SEPARATE BARGAINING UNITS LOCATED AT THE NAVAL WEAPONS STATION ("NWS") AND THE NAVY EXCHANGE, RESPECTIVELY. EACH OF THESE THREE BARGAINING UNITS HAS ITS OWN SEPARATE COLLECTIVE BARGAINING AGREEMENT. THE RESPONDENT ACTIVITY, ALSO KNOWN AS POMFLANT, IS A TENANT ACTIVITY OF THE NAVAL WEAPONS STATION AND THESE TWO COMMANDS ARE GEOGRAPHICALLY SITUATED ADJACENT TO EACH OTHER. POMFLANT AND THE WEAPONS STATION ARE BOTH SERVICED BY A COMMON CIVILIAN PERSONNEL OFFICE WHICH IS LOCATED AT THE WEAPONS STATION AT A DISTANCE OF ABOUT SIX MILES FROM THE HIGH SECURITY WORK PLACE AT POMFLANT. THE NAVY EXCHANGE IS SERVICED BY A SEPARATE CIVILIAN PERSONNEL OFFICE LOCATED ABOUT FIFTEEN MILES FROM POMFLANT AND THE NWS. DURING 1976, HAROLD DENTON, A POMFLANT EMPLOYEE, WAS THE UNION PRESIDENT. DURING THAT SAME PERIOD, HE ATTENDED MONTHLY MEETINGS, CONDUCTED BY THE COMMANDING OFFICER AT NWS AT WHICH HE WOULD REPRESENT NWS EMPLOYEES. PRIOR TO ATTENDING SUCH MEETINGS, DENTON NOTIFIED HIS SUPERVISOR OF THE DATE, TIME, AND PLACE OF THE MEETING AND WOULD MAKE A NOTATION TO THAT EFFECT ON THE SUPERVISOR'S CALENDAR. IN ADDITION, ON THE DAY OF EACH MEETING, HE WOULD OBTAIN PERMISSION FROM HIS SUPERVISOR TO ATTEND THE MEETING ON OFFICIAL TIME. ON JANUARY 5, 1977, RESPONDENT SENT DENTON, THE UNION PRESIDENT, A PROPOSED DIRECTIVE CONCERNING THE USE OF OFFICIAL TIME FOR REPRESENTATIONAL PURPOSES. RESPONDENT ASKED DENTON TO REVIEW THIS PROPOSAL AND TO COMMENT IN ACCORDANCE WITH THE COLLECTIVE BARGAINING AGREEMENT IN EFFECT AT THAT TIME. AFTER REVIEWING THIS DIRECTIVE, DENTON TOLD RESPONDENT IN WRITING THAT THE DIRECTIVE WAS "OK". THE DIRECTIVE, KNOWN AS POMFLANT NOTICE 12700, WAS ENTITLED "USE OF OFFICIAL TIME FOR EMPLOYEE REPRESENTATIONAL PURPOSES." "OFFICIAL TIME" WAS SPECIFICALLY DEFINED AS "ALL TIME GRANTED EMPLOYEES BY MANAGEMENT TO PERFORM REPRESENTATIONAL FUNCTIONS FOR THIS ACTIVITY'S (POMFLANT'S) EMPLOYEES WHILE OTHERWISE IN A DUTY STATUS WITHOUT CHARGE TO ANNUAL LEAVE OR LEAVE WITHOUT PAY STATUS." THE NOTICE ALSO STATED THAT IN AUTHORIZING SUCH OFFICIAL TIME, SUPERVISORS SHOULD SATISFY THEMSELVES THAT THE USE OF OFFICIAL TIME FOR REPRESENTATIONAL FUNCTIONS IS REASONABLE AND MUTUALLY BENEFICIAL TO MANAGEMENT AND "THIS ACTIVITY'S EMPLOYEES." SUPERVISORS WERE ALSO DIRECTED TO ENSURE THAT THE UNION REPRESENTATIVE RECORD THE SPECIFIC TYPE OF REPRESENTATIONAL DUTY, BY DESIGNATED CODE NUMBER, ON HIS DAILY TIME AND ATTENDANCE RECORD (LABOR COST CARD). FIVE CATEGORIES OF REPRESENTATIONAL DUTIES WERE LISTED, INCLUDING ONE ENTITLED "MEETINGS WITH MANAGEMENT." THE LATTER CATEGORY WAS DEFINED AS FOLLOWS: LABOR COST ONLY FOR UNION OFFICERS, STEWARDS AND EMPLOYEES WITHIN THE UNIT, WHILE REPRESENTING THE UNIT, FOR THE PURPOSE OF IMPLEMENTING E.O. 11491, MEETINGS WITH MANAGEMENT, SERVING ON COMMITTEES, MERIT PROMOTION RATING PANELS, ETC. AFTER RECEIVING THE UNION'S ACQUIESCENCE, RESPONDENT ISSUED THE ABOVE DIRECTIVE ON JANUARY 26, 1977. DENTON RESIGNED AS PRESIDENT OF THE UNION IN MARCH OF 1977. THEREAFTER, IN JUNE OF THAT YEAR, LESTER BANEGAS BECAME THE UNION PRESIDENT. BANEGAS WAS A MECHANIC WORKING AT THE POMFLANT HIGH SECURITY WORK AREA. BETWEEN JUNE OF 1977 AND AUGUST OF 1978, BANEGAS ATTENDED APPROXIMATELY 60% OF THE MONTHLY CAPTAIN'S MEETINGS AT NWS AS A UNION REPRESENTATIVE FOR NWS EMPLOYEES. HE DID NOT TAKE ANNUAL LEAVE OR LEAVE WITHOUT PAY WHILE ATTENDING THESE MEETINGS. WHENEVER HE ATTENDED ONE OF THESE MEETINGS, HE WOULD INDICATE ON HIS DAILY TIME CARD THE LABOR COST CODE NUMBER SPECIFIED FOR "MEETINGS WITH MANAGEMENT" SET FORTH IN THE JANUARY 26, 1977, DIRECTIVE. IN AUGUST OF 1978 THE UNION AND THE NWS WERE PREPARING TO BEGIN NEGOTIATIONS FOR A COLLECTIVE BARGAINING AGREEMENT RELATING TO NWS EMPLOYEES. ON AUGUST 26, 1978, BANEGAS ASKED HIS OWN EMPLOYER, POMFLANT, THAT HE BE GRANTED A CERTAIN AMOUNT OF OFFICIAL TIME FOR THE PURPOSE OF NEGOTIATING THE ABOVE AGREEMENT BETWEEN NWS AND AFGE LOCAL 2298. BY MEMORANDUM DATED SEPTEMBER 11, 1978, THE COMMANDING OFFICER OF POMFLANT DENIED BANEGAS'S REQUEST, BUT INDICATED THAT BANEGAS COULD TAKE LEAVE WITHOUT PAY OR ANNUAL LEAVE IF HE WISHED TO PARTICIPATE IN THE NEGOTIATIONS. THE COMMANDING OFFICER REASONED, IN PART, AS FOLLOWS: THIS FACILITY IS IN NO WAY INVOLVED IN THE NEGOTIATIONS AT THE NAVAL WEAPONS STATION, NOR ARE ANY OF THE MEMBERS OF THE BARGAINING UNIT AT THIS FACILITY DIRECTLY AFFECTED BY THOSE NEGOTIATIONS. YOUR ELECTION TO PARTICIPATE OR NOT PARTICIPATE IN THE NEGOTIATIONS AT THE NAVAL WEAPONS STATION IS A MATTER OF INTERNAL UNION BUSINESS AND NOT A MATTER OF OFFICIAL CONCERN TO THIS FACILITY. FOR APPROXIMATELY NINE MONTHS THEREAFTER, BANEGAS PARTICIPATED IN THE NEGOTIATIONS OF THE NWS COLLECTIVE BARGAINING AGREEMENT WHILE IN A LEAVE WITHOUT PAY STATUS. HE WAS REIMBURSED BY THE UNION FOR HIS TIME. ALSO, DURING THIS ENTIRE PERIOD OF NEGOTIATIONS, THE COMMANDING OFFICER OF NWS SUSPENDED HIS MONTHLY "CAPTAIN'S MEETINGS". THE LATTER MONTHLY MEETINGS WERE NOT RESUMED UNTIL JUNE OR JULY OF 1979. AFTER THE MONTHLY CAPTAIN'S MEETINGS AT NWS WERE RESUMED IN 1979, BANEGAS CONTINUED TO ATTEND APPROXIMATELY 60% OF THESE MEETINGS UP TO, AND INCLUDING, THE MEETING HELD ON NOVEMBER 19, 1979. BANEGAS'S SUPERVISOR DURING THE LATTER TIME PERIOD WAS ROBERT NEWBERRY. DURING THAT PERIOD, BANEGAS NEVER TOLD NEWBERRY THAT HE WAS GOING TO THE MEETINGS IN QUESTION AND DID NOT REVEAL THAT HIS MISSION ON EACH OCCASION WAS TO REPRESENT THE EMPLOYEES OF NWS RATHER THAN POMFLANT. BEFORE LEAVING FOR EACH MEETING, BANEGAS WOULD MERELY TELL NEWBERRY THAT HE WAS GOING "SOUTHSIDE", A TERM USED FOR THE NAVAL WEAPONS STATION. SINCE THE CIVILIAN PERSONNEL OFFICE FOR POMFLANT EMPLOYEES WAS LOCATED AT NWS, NEWBERRY REASONABLY ASSUMED THAT BANEGAS WAS MERELY GOING "SOUTHSIDE" TO REPRESENT POMFLANT EMPLOYEES. SINCE HE WAS THE UNION PRESIDENT, BANEGAS HAD FREQUENT DEALINGS WITH THAT CIVILIAN PERSONNEL OFFICE. DURING THIS PERIOD, BANEGAS'S SECOND LEVEL SUPERVISOR WAS ALSO UNAWARE OF THE FACT THAT BANEGAS WAS ATTENDING THE NWS CAPTAIN'S MEETINGS. IT IS ALSO NOTED IN THIS REGARD, THAT BANEGAS CONTINUED TO USE THE LABOR COST CODE ON HIS TIME CARD INDICATING THAT HE WAS IN A MEETING WITH MANAGEMENT CONCERNING POMFLANT EMPLOYEES. AT ALL TIMES MATERIAL HEREIN, WHENEVER BANEGAS PERFORMED REPRESENTATIONAL FUNCTIONS AT THE NAVY EXCHANGE BARGAINING UNIT, HE PUT IN A LEAVE SLIP REQUESTING ANNUAL OR LEAVE WITHOUT PAY. SUCH REQUESTS WERE ROUTINELY GRANTED BY HIS FIRST OR SECOND LEVEL SUPERVISOR. ON NOVEMBER 20, 1979, RAYMOND MELLARD, WHO HAS BEEN BANEGAS'S SECOND LEVEL SUPERVISOR SINCE APRIL OF 1978, OVERHEARD BANEGAS SAY THAT HE HAD ATTENDED A MEETING ON NOVEMBER 19 WITH THE COMMANDING OFFICER OF THE NWS. MELLARD CALLED THE RESPONDENT'S LABOR RELATIONS SPECIALIST TO ASK IF BANEGAS HAD ATTENDED SUCH A MEETING AND IF THERE HAD BEEN ANY CHANGE IN POMFLANT POLICY THAT WOULD ALLOW OFFICIAL TIME FOR SUCH A MEETING. MELLARD WAS TOLD THAT OFFICIAL TIME WOULD NOT BE APPROPRIATE. THIS WAS THE FIRST TIME THAT MELLARD WAS AWARE THAT BANEGAS HAD ATTENDED THE MEETINGS IN QUESTION. SINCE NEWBERRY WAS ON ANNUAL LEAVE DURING THIS TIME, MELLARD TOLD BANEGAS THAT HE WOULD HAVE TO BE CHARGED WITH ANNUAL LEAVE OR LEAVE WITHOUT PAY FOR THE TIME SPENT IN THAT MEETING. SINCE THAT TIME, BANEGAS HAS SUBMITTED LEAVE SLIPS FOR ALL OF THE CAPTAIN'S MEETINGS AT NWS THAT HE HAS ATTENDED. CONCLUSIONS OF LAW THE COMPLAINT ALLEGES THAT RESPONDENT'S POMFLANT ACTIVITY VIOLATED SECTION 7116(A)(5) AND (1) OF THE STATUTE BY UNILATERALLY CHANGING AN ESTABLISHED PAST PRACTICE WHEN IT REFUSED TO GRANT THE UNION PRESIDENT OFFICIAL TIME FOR REPRESENTING THE EMPLOYEES OF A DIFFERENT ACTIVITY, NWS, AT MONTHLY NWS CAPTAIN'S MEETINGS. IT IS WELL SETTLED THAT THE USE OF OFFICIAL TIME FOR REPRESENTATIONAL ACTIVITIES OF AN EXCLUSIVE BARGAINING REPRESENTATIVE IS SUBJECT TO BARGAINING BY THE PARTIES. IT IS ALSO WELL ESTABLISHED THAT PARTIES MAY ESTABLISH TERMS AND CONDITIONS OF EMPLOYMENT BY PRACTICE, OR OTHER FORM OF TACIT OR INFORMAL AGREEMENT, AND THAT TERMS OR CONDITIONS ESTABLISHED IN THIS MANNER MAY NOT BE ALTERED BY EITHER PARTY IN THE ABSENCE OF AGREEMENT OR IMPASSE FOLLOWING GOOD FAITH BARGAINING. DEPARTMENT OF THE NAVY, NAVAL UNDERWATER SYSTEMS CENTER, NEWPORT NAVAL BASE, 3 FLRA NO. 64(1980). A PRACTICE WILL BE CONSIDERED TO HAVE RIPENED INTO A TERM OR CONDITION OF EMPLOYMENT IF IT HAS BEEN CONSISTENTLY EXERCISED FOR AN EXTENDED PERIOD OF TIME WITH THE KNOWLEDGE AND CONSENT OF THE RESPONDENT'S SUPERVISORS. ID. IT IS CLEAR THAT POMFLANT ESTABLISHED A POLICY WITH REGARD TO OFFICIAL TIME FOR UNION REPRESENTATIONAL PURPOSES IN ITS DIRECTIVE DATED JANUARY 26, 1977, AND THAT THIS POLICY WAS PUT INTO EFFECT WITH THE ACQUIESCENCE OF THE UNION. THAT DIRECTIVE PROVIDED THAT OFFICIAL TIME WOULD ONLY BE GRANTED WHERE THE UNION OFFICIAL WAS REPRESENTING A POMFLANT EMPLOYEE. THE GENERAL COUNSEL IS ESSENTIALLY ARGUING THAT AFTER THIS DIRECTIVE WAS ISSUED THE RESPONDENT CONTINUED TO GIVE THE UNION PRESIDENT, BANEGAS, OFFICIAL TIME WHEN HE WAS REPRESENTING THE NWS EMPLOYEES AT THE CAPTAIN'S MEETINGS AT NWS, AND THAT THE GRANTING OF OFFICIAL TIME FOR THAT PURPOSE BECAME A TERM OR CONDITION OF EMPLOYMENT NOTWITHSTANDING THE PREVIOUS DIRECTIVE. I AM CONSTRAINED TO CONCLUDE AND HOLD THAT THE GENERAL COUNSEL HAS FAILED TO SUSTAIN HIS BURDEN OF PROOF IN THIS REGARD. AFTER BANEGAS WAS ELECTED UNION PRESIDENT IN JUNE OF 1977 HE ATTENDED ABOUT 60% OF THE MONTHLY CAPTAIN'S MEETINGS AT NWS UNTIL NOVEMBER OF 1979. THESE MEETINGS WERE NOT HELD FOR ABOUT NINE MONTHS FROM SEPTEMBER OF 1978 TO JUNE OF 1979. BANEGAS TESTIFIED THAT PRIOR TO EACH ONE OF THESE MEETINGS HE SPECIFICALLY TOLD HIS SUPERVISOR THAT HE WAS GOING TO THE CAPTAIN'S MEETING AT NWS AND THAT HE WAS GRANTED OFFICIAL TIME BY HIS IMMEDIATE SUPERVISOR. IN DIRECT CONTRAST TO THIS TESTIMONY, NEWBERRY, WHO WAS BANEGAS'S SUPERVISOR BETWEEN MARCH AND DECEMBER OF 1979, CANDIDLY TESTIFIED THAT HE WAS COMPLETELY UNAWARE OF BANEGAS'S ATTENDANCE AT THOSE MEETINGS UNTIL AFTER NOVEMBER 19, 1979. NEWBERRY STATED THAT BANEGAS FREQUENTLY ASKED PERMISSION FOR OFFICIAL TIME TO TRANSACT UNION BUSINESS AT THE NAVAL WEAPONS STATION, BUT NEWBERRY AND THE OTHER SUPERVISORS ALWAYS REASONABLY ASSUMED THAT BANEGAS WAS REPRESENTING POMFLANT EMPLOYEES AT THE CIVILIAN PERSONNEL OFFICE AT NWS RATHER THAN NWS EMPLOYEES. OTHER FACTORS LEADING TO THIS ASSUMPTION WERE (1) THE FACT THAT BANEGAS TOOK LEAVE WITHOUT PAY WHILE NEGOTIATING THE COLLECTIVE BARGAINING AGREEMENT FOR EMPLOYEES AT NWS, (2) HE TOOK LWOP WHEN HE REPRESENTED THE EMPLOYEES AT A THIRD ACTIVITY, THE NAVY EXCHANGE, AND (3) WHENEVER HE WENT TO NWS CAPTAIN'S MEETINGS BANEGAS MARKED A LABOR COST CODE ON HIS TIME CARD WHICH INDICATED THAT HE WAS REPRESENTING POMFLANT EMPLOYEES. I CANNOT CREDIT BANEGAS'S TESTIMONY THAT HE MADE HIS SUPERVISORS AWARE OF HIS ATTENDANCE AT THE NWS CAPTAIN'S MEETINGS. MOREOVER, THERE IS NO CREDIBLE EVIDENCE THAT HIS SUPERVISORS EVER REALIZED HE WAS REPRESENTING ANYONE OTHER THAN POMFLANT EMPLOYEES WHILE ON OFFICIAL TIME. I HAVE, THEREFORE, CONCLUDED THAT THE GENERAL COUNSEL HAS FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT RESPONDENT'S SUPERVISORS EITHER KNOWINGLY OR CONSISTENTLY ALLOWED BANEGAS OFFICIAL TIME WHILE HE WAS REPRESENTING NWS EMPLOYEES AT THE CAPTAIN'S MEETINGS. ABSENT THESE ESSENTIAL ELEMENTS OF PROOF IT CANNOT BE SAID THAT A TACIT OR INFORMAL AGREEMENT CONSTITUTING A TERM OR CONDITION OF EMPLOYMENT WAS ESTABLISHED. THUS RESPONDENT'S REFUSAL ON NOVEMBER 20, 1979, TO GRANT BANEGAS OFFICIAL TIME REPRESENTED A REAFFIRMATION OF THE EXISTING JANUARY 26, 1977 POLICY RATHER THAN A CHANGE IN WORKING CONDITIONS. SINCE I HAVE FOUND NO VIOLATION OF THE STATUTE, I HEREBY RECOMMEND THAT THE AUTHORITY ADOPT THE FOLLOWING: ORDER IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 4-CA-435 BE, AND HEREBY IS, DISMISSED. RANDOLPH D. MASON ADMINISTRATIVE LAW JUDGE DATED: DECEMBER 22, 1980 WASHINGTON, D.C. --------------- FOOTNOTES: --------------- /1/ THE GENERAL COUNSEL'S MOTION TO CORRECT THE TRANSCRIPT IS GRANTED.