17:0126(25)CA - HHS, SSA and AFGE -- 1985 FLRAdec CA
[ v17 p126 ]
17:0126(25)CA
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.