Department of Defense, Department of the Navy, Polaris Missile Facility Atlantic, Charleston, South Carolina (Activity) and American Federation of Government Employees, Local 2298, AFL-CIO (Petitioner) (Authority decision, August 5, 1981)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A Navy missile facility denied official time to its employee for representing workers at a separate Navy activity. The union alleged a unilateral change in an established practice. The Authority adopted the judge’s dismissal because the record did not show that facility supervisors knowingly and consistently allowed that use of official time.

Decision snapshot

• Authority: 5 U.S.C. § 7116(a)(1), 5 U.S.C. § 7116(a)(5), 5 U.S.C. § 7118.
• Outcome: Judge’s dismissal adopted; unfair labor practice complaint dismissed.
• Key point: An unproven past practice did not require bargaining before denying official time for representation at another activity.

Full text (FLRA public release)

[ 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.