14:0475(78)CA - Defense Logistics Agency, Defense Depot Tracy, Tracy, CA and Laborers International Union Local 1276 -- 1984 FLRAdec CA



[ v14 p475 ]
14:0475(78)CA
The decision of the Authority follows:


 14 FLRA No. 78
 
 DEFENSE LOGISTICS AGENCY
 DEFENSE DEPOT TRACY
 TRACY, CALIFORNIA
 Respondent
 
 and
 
 LABORERS INTERNATIONAL UNION
 LOCAL 1276, AFL-CIO
 Charging Party
 
                                            Case No. 9-CA-401
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain unfair labor practices alleged in the complaint and recommending
 that it be ordered to cease and desist therefrom and take certain
 affirmative action.  Exceptions to the Judge's Decision were filed by
 the General Counsel and the Respondent, and the General Counsel filed an
 opposition to the Respondent's exceptions.
 
    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 in this case, the Authority
 hereby adopts the Judge's findings, conclusions and recommendations, as
 modified herein.
 
    As found by the Judge, Respondent's supervisor held a meeting on
 March 12, 1980, with five or six unit employees under his supervision
 during which he announced a change in the established sick leave call-in
 procedure.  The General Counsel's complaint alleged that Respondent
 violated section 7116(a)(1), (5) and (8) of the Statute by changing a
 past practice with regard to sick leave call-in without giving notice
 and an opportunity to bargain to the Charging Party, by holding a formal
 discussion with unit employees without providing an opportunity for the
 employees' exclusive representative to be present, and by bargaining
 directly with unit employees concerning their conditions of employment
 in derogation of the status of the exclusive representative.
 
    In agreement with the Judge, the Authority concludes that the
 Respondent violated section 7116(a)(1) and (5) of the Statute when,
 without prior notice to the Union, it unilaterally changed its past
 practice with regard to sick leave call-in procedures.  Thus, the record
 supports the Judge's finding that a past practice had been established
 of not requiring employees to call in again on the second day of sick
 leave, and that the Respondent unilaterally changed this practice when
 its supervisors began enforcing a new call-in procedure in March 1980.
 /1/
 
    The Authority will next consider whether the meeting in question held
 to announce what amounted to a unilateral change in personnel policies
 and practices in violation of the Statute also constituted separate
 violations of the Statute because it was a formal discussion within the
 meaning of section 7114(a)(2)(A) of the Statute /2/ and/or because it
 evidenced an attempt to bypass the exclusive representative and deal
 directly with unit employees.  The Judge found that the meeting was a
 formal discussion within the meaning of section 7114(a)(2)(A) of the
 Statute and concluded that Respondent's failure to give the Union prior
 notice and an opportunity to be represented constituted a separate
 violation of section 7116(a)(1) and (8) of the Statute.  Additionally,
 the Judge concluded that this meeting constituted a bypass of the Union
 in derogation of its status as the exclusive representative of the
 bargaining unit employees, a further separate violation of section
 7116(a)(1) and (5) of the Statute.  The Authority disagrees on both
 points.
 
    With respect to the formal discussion issue, the Judge found that the
 Union was entitled to attend based on the fact that the substance of the
 supervisor's announcement concerned a condition of employment.  However,
 under section 7114(a)(2)(A) of the Statute, the fact that a discussion
 concerns a "grievance or any personnel policy or practices or other
 general condition of employment" is not the sole determining factor of
 whether an exclusive representative shall be given the opportunity to be
 represented.  The discussion must also be formal in nature.
 
    In Department of Health and Human Services, Social Security
 Administration, Bureau of Field Operations, San Francisco, California,
 10 FLRA 115 (1982), the Authority dismissed a complaint based on the
 General Counsel's failure to meet the burden of proving that the
 meetings in question were formal discussions within the meaning of
 section 7114(a)(2)(A) of the Statute.  In so doing, the Authority noted
 a number of factors relevant to a determination of whether meetings are
 in fact "formal" in nature.  These are:  (1) whether the individual who
 held the discussions is merely a first-level supervisor or is higher in
 the management hierarchy;  (2) whether any other management
 representatives attended;  (3) where the individual meetings took place
 (i.e., in the supervisor's office, at each employee's desk, or
 elsewhere);  (4) how long the meetings lasted;  (5) how the meetings
 were called (i.e., with formal advance written notice or more
 spontaneously and informally);  (6) whether a formal agenda was
 established for the meetings;  (7) whether each employee's attendance
 was mandatory;  and (8) the manner in which the meetings were conducted
 (i.e., whether the employee's identity and comments were noted or
 transcribed).  The foregoing list was not intended to be exhaustive.
 Other factors may be identified and applied as appropriate in a
 particular case.  Thus, in determining formality, the Authority will
 consider the totality of the facts and circumstances presented.
 
    Upon consideration of the record herein, the Authority concludes that
 the March 12, 1980 meeting was not "formal" in nature.  In this regard,
 the Authority notes that the meeting in question was called and
 conducted by a first line supervisor on his own initiative, with no
 other management representative being present, to instruct his several
 immediate subordinates on the Agency leave policy.  The meeting was not
 scheduled in advance.  The meeting was held in the supervisor's office
 adjacent to the employees' work location, lasted no more than 10
 minutes, and had no formal agenda.  The meeting was, in essence and
 effect, a meeting held to announce what amounted to a unilateral change
 in personnel policies and practices which change was itself in violation
 of the Statute.  Accordingly, the Authority finds that the meeting was
 not a formal discussion within the meaning of section 7114(a)(2)(A) of
 the Statute and that the Respondent's failure to provide the Union with
 an opportunity to be present was not violative of section 7116(a)(1) and
 (8) of the Statute, and the Judge's finding to the contrary must be set
 aside.
 
    With respect to the issue of alleged bypass, the Authority notes that
 to establish a bypass, it is incumbent on the General Counsel to prove
 that the Respondent attempted to deal directly with employees over
 conditions of employment.  As the record fails to establish that the
 supervisor either attempted to negotiate or to otherwise deal directly
 with employees concerning the change in the sick leave call-in practice
 at the meeting on March 12, 1980, the Authority concludes that the
 General Counsel has failed to establish that an unlawful bypass
 occurred.  Accordingly, the Judge's finding of a violation in this
 regard must be set aside.  /3/
 
    With respect to a remedy for the violation found herein, the General
 Counsel excepted to the Judge's Recommended Order in this regard insofar
 as it only required the Respondent to negotiate with respect to the
 impact and implementation of the decision to change the established sick
 leave call-in practice.  The General Counsel seeks an order requiring
 the Respondent to reinstitute the preexisting policy and to bargain with
 the Union concerning the decision itself.  Respondent, in its
 exceptions, argues that such an order would be improper based on the
 parties' subsequent agreement covering sick leave call-in procedures.
 Noting particularly that Respondent's decision itself concerned a
 unilateral change of a condition of employment and that it has not been
 contended nor does it otherwise appear that the matter was outside the
 duty to bargain, the Authority concludes that the remedy sought by the
 General Counsel is appropriate, subject to any subsequent agreement
 which may have been reached by the parties concerning the change.  Thus,
 the Authority has modified the Judge's Order accordingly.  See Army and
 Air Force Exchange Service (AAFES), Fort Carson, Colorado, 10 FLRA 235
 (1982).
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, the
 Authority hereby orders that the Defense Logistics Agency, Defense Depot
 Tracy, Tracy, California shall:
 
    1.  Cease and desist from:
 
    (a) Unilaterally instituting changes with respect to established sick
 leave call-in practices without providing prior notice to, and, upon
 request, bargaining with the Laborers International Union, Local 1276,
 AFL-CIO, the exclusive representative of its employees.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Reinstitute the practice in effect prior to March 1980 of
 requiring employees to call-in only on the first day they are on sick
 leave unless such practice has already been modified or adopted in a
 manner consistent with the Statute.
 
    (b) Make whole any employee adversely affected by the unlawful change
 in call-in practice for that period of time preceding either the
 effectuation of any subsequent agreement by the parties with regard to
 such practice, or the reinstitution of the practice pursuant to this
 Order, whichever occurs first.
 
    (c) Notify the Laborers International Union, Local 1276, AFL-CIO, of
 any intended change in established sick leave call-in practices and,
 upon request, bargain in good faith with respect to such intended
 change.
 
    (d) Post at its Defense Depot Tracy, Tracy, California facility
 copies of the attached Notice on forms to be furnished by the Federal
 Labor Relations Authority.  Upon receipt of such forms, they shall be
 signed by the Depot Director, or his designee, and shall be posted and
 maintained for 60 consecutive days thereafter, in conspicuous places,
 including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 insure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (e) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region IX, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    IT IS FURTHER ORDERED that the other allegations of the complaint in
 Case No. 9-CA-401 be, and they hereby are, dismissed.  
 
 Issued, Washington, D.C., May 10, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
 PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    We will not unilaterally institute changes with respect to
 established sick leave call-in practices without providing prior notice
 to, and, upon request, bargaining with the Laborers International Union,
 Local 1276, AFL-CIO, the exclusive representative of our employees.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL reinstitute the practice in effect prior to March 1980 of
 requiring employees to call-in only on the first day they are on sick
 leave unless such practice has already been modified or adopted in a
 manner consistent with the Statute.
 
    WE WILL make whole any employee adversely affected by the unlawful
 change in sick leave call-in practice for that period of time preceding
 either the effectuation of any subsequent agreement by the parties with
 regard to such practice, or the reinstitution of the practice pursuant
 to this Notice, whichever occurs first.
 
    WE WILL notify the Laborers International Union, Local 1276, AFL-CIO,
 of any intended change in established sick leave call-in practices and,
 upon request, bargain in good faith with respect to such intended
 change.
                                       (Activity)
 
 Dated:  . . .  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region IX, Federal Labor Relations Authority, whose address
 is:  530 Bush Street, Room 542, San Francisco, California 94108, and
 whose telephone number is:  (415) 556-8106.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
 
                                       Case No.: 9-CA-401
    Richard H. Kaake, Esq.
          For the Respondent
 
    Stephanie Arthur, Esq.
          For the General Counsel
 
    Before:  ELI NASH, JR.
                         Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose pursuant to the Federal Service Labor-Management
 Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq., hereinafter
 called the Statute, as a result of an unfair labor practice charge filed
 on March 25, 1980.  The complaint, issued on June 25, 1980, alleged that
 Defense Logistics Agency, Defense Depot Tracy, Tracy, California,
 hereinafter referred to as the Depot or Respondent, violated section
 7116(a)(1), (5) and (8) of the Statute by changing a past practice with
 regard to sick leave call-in without giving notice and an opportunity to
 bargain to Laborers International Union, Local 1276, AFL-CIO,
 hereinafter called the Union, and by holding a formal discussion with
 unit employees without providing an opportunity for the employees
 exclusive representative to be present.
 
    A hearing was held in this matter before the undersigned in San
 Francisco, California, on August 14, 1980.  All parties were represented
 by counsel and afforded full opportunity to be heard, adduce relevant
 evidence, and examine and cross-examine witnesses.  All parties filed
 briefs which have been duly considered.
 
    Based upon 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 Order.
 
                             Findings of Fact
 
    At all times material herein, a collective bargaining agreement has
 been in effect between the Union and Respondent, covering a unit of all
 non-supervisory Wage Grade employees at the Tracy Depot.
 
    On or about March 12, 1980, supervisor Richard McCormick held a
 meeting with 5 or 6 unit employees under his supervision in Warehouse 21
 during which he announced a change in the established sick leave call-in
 practice.  According to McCormick, he was having a problem with
 employees requesting all kinds of leave and, about that time, he had a
 particular problem with an employee who had called in sick but had
 failed to call back the next day although instructed to do so by
 McCormick.  When the employee explained that he had not understood
 McCormick's instruction to call back, McCormick decided to call his
 employees together and instruct them on leave policy.  McCormick
 testified that he "had different employees working for me applying for
 leave in different ways," and that, "it seemed as though they did not
 understand what the Depot policy actually was".
 
    During the course of the meeting, McCormick instructed the employees
 on how to obtain annual, advanced sick, emergency annual and sick leave.
  McCormick did not give the Union any advance notice of this meeting.
 However, Tom Blas, who was under McCormick's supervision and was the
 union shop steward for Warehouse 21 was present.  McCormick told the
 employees that he was "reaffirming Depot policy on calling in for leave"
 and employees would have to call back and request leave each day of
 their absence or be subject to disciplinary action.  McCormick added
 that this was not changing anything.  Upon finishing his instructions
 some of the employees questioned McCormick concerning the change in
 call-in policy and indicated that they should only have to call in the
 first day as they had done in the past.  According to McCormick, an
 employee Dennis Friend stated that the Depot policy had always been that
 way.  One employee, Debra Shrenk commented "I thought that we had three
 days when we called in." Union steward Blas specifically asked McCormick
 if he was changing Depot policy on calling in and McCormick replied that
 he was not.  Steward Blas testified that during the three years he was
 employed at the Depot, until McCormick announced this so-called Depot
 policy on March 12, 1980, it was his understanding that employees were
 required to call-in only on the first day of sick leave and that, in
 fact, was the practice he had followed.
 
    During this same period of time, Bill Arnolfo, a warehouseman in
 Warehouse 10, Stock Readiness Branch and then a union steward, began
 hearing rumors regarding a change in the sick leave call-in procedure
 and, about the middle of March, was approached by an employee who wanted
 to know why he was being required to call in for sick leave everyday.
 Arnolfo testified that, he understood the sick leave call-in procedure
 was to call the first day of absence-- indeed, that this was the
 procedure that management had told him to follow and which he had been
 following since he first came to work at the Depot in 1972.
 
    Steward Arnolfo then arranged to see the Branch Chief, Mr. Marino
 about this change in procedure.  According to Arnolfo, Mr. Marino
 advised him that in accordance with a Supervisor's "By-Line" dated
 August or September of 1979, employees were now required to call in each
 day of their absence.  Arnolfo told Marino that he did not agree with
 this change, but that if that was what was going to be enforced, he
 thought it only fair that the new policy be explained to the employees.
 Also, Arnolfo told Marino, he wanted to avoid the situation where an
 employee relying on his understanding of the past practice, failed to
 call-in the second day and was placed on AWOL.
 
    Thereafter, Marino's foremen Alvarez and Martinez each met with their
 own group of unit employees to inform them of the change in sick leave
 call-in procedure.  Arnolfo was employed in Alvarez's group and attended
 the meeting.  Alvarez merely read the Supervisor's "By-Line" to the
 employees and told them that there were going to be new requirements
 with regard to calling in for sick leave.
 
    Both during and after the meeting, employees complained about the new
 procedure.  When asked, Arnolfo told one employee that management had
 plans to put employees who did not comply with the call-in procedure on
 AWOL status and advised the employee to do as he was told.  Further,
 Arnolfo testified that he overheard a supervisor tell an employee over
 the telephone that he would have to call back the next day or be put on
 AWOL status.
 
    The Union learned of the change in the Depot sick leave call in
 practice when Union Steward Tom Blas reported to Chief Steward Joe
 Delozier the policy which had been announced at McCormick's meeting.
 
    The call-in procedure prior to March 1980, according to employee
 Euleta McCurry, was told her when she was first employed at the Depot
 approximately thirteen years before, she was advised at that time by her
 supervisor that she was only required to call to report her absence on
 the first day, although after three days she would have to bring a note
 from her doctor.  She stated that this was the procedure she had
 followed during her entire employment at the Depot, /4/ and she has yet
 to be told to do otherwise.
 
    Steward Arnolfo, a warehouseman in the Stock Readiness Branch,
 Warehouse 10, and currently Chief Shop Steward, recalls that when he
 first began work at the Depot in 1972, he was advised by his supervisor
 that if he were sick he was expected to call in the first day of absence
 after which he would be carried on sick leave.  Arnolfo also testified
 that this was the identical procedure he had followed when he worked in
 the Receiving Division, Shipping, Commissary Store, Bin Operations, and
 until March, 1980, in Stock Readiness.  Steward Tom Blas testified that
 he had followed the first day call-in practice under several different
 supervisors during the three years he worked at the Depot.  Joe
 Delozier, until shortly before the hearing, employed as a packer and
 Chief Shop Steward at the Depot, testified that he had followed the
 first day only call-in procedure in three different warehouses and under
 many different supervisors from the time he began work at the Depot in
 1974 until he left.
 
    General Equipment Inspector Foreman, Leonard P. Lester, Sr. testified
 that he understood the policy to be "everyday they are off they are
 supposed to call-in." Lester states that he had applied this policy
 since shortly after July 1979 when he became a supervisor.
 
    Lloyd Kinser, a supervisor in Bin Packing, states that he has been
 applying the policy as set out in the August 1979, "By-Line" and told
 his employees when they called for sick leave "if they are not going to
 be in tomorrow, would you please give me a call." The "By-Line"
 announcement previously referred to read as follows:
 
          With a true emergency or illness, do not assume your supervisor
       can read your mind.  A brief phone call can often result in
       understanding and approval of your problem.  Communication with
       your supervisor, or his designated representative in the absence
       of the supervisor, on each and every day of absence is a
       prerequisite to leave approval, unless your supervisor has
       approved subsequent days of absence.
 
    Branch Chief, Manual Carrillo, Jr., stated that the current policy of
 the Depot was:
 
          "through an agreement with the supervisor, when they call for
       the duration of the leave, it may be one day, it may be several,
       it depends on the supervisor and the individual and, if more time
       is granted on the first day then he does not have to call the
       second day."
 
    Mr. Carrillo also stated his interpretation of the parties negotiated
 agreement concerning call-in procedures.  /5/ Carrillo stated that his
 interpretation of Article X as follows:
 
          "the first four hours on the day in question would be the first
       day.  Once the leave is approved for that day it is only for that
       day and, subsequent days become the next four hours for the next
       leave duration because it has been approved for the one day only.
       The next day would begin another day, another four hours."
 
    Finally, Respondent presented testimony from two employees, Henry E.
 Simmons and Dennis L. Friend that neither felt the requirement that an
 employee call-in each day of sick leave was a change in past policy.
 
                                Conclusions
 
                           A. Procedural Matters
 
    Respondent moved to dismiss the complaint in this matter as being
 untimely filed and as involving a matter of contract interpretation
 which should be resolved under procedures agreed to by the parties in
 their collective bargaining agreement.
 
    First, Respondent alleges that the Authority lacks jurisdiction in
 the matter because the complaint is based on an allegation of an unfair
 labor practice which occurred more than six months before the filing of
 the charge with the Authority, and pursuant to provisions of 5 U.S.C.
 7118(a)(4)(A), such issues may not be raised as an unfair labor
 practice.  /6/ At the hearing, Respondent contended that on or around
 March 6, 1980 it merely sought to enforce a practice or well publicized
 policy on sick leave call-in which was clearly acknowledged in Agency
 publications around August 1979 and that the publication predated the
 charge filed on March 25, 1980, by more than six months.  In essence,
 Respondent contends that the action about which the Union complains
 occurred in August 1979.
 
    In this respect, Respondent urges that there was no failure to
 perform a duty owed or concealment as provided under Sec. 7118(a)(4)(A)
 since the agency publication Depot Personnel Message was distributed to
 all employees and to the Union about August 24, 1979.
 
    The Union's Chief Steward in August 1979, Joe Delozier denied
 receiving a copy of the Depot Personnel Message and did not recall
 seeing the official Depot publication stating the Agency's position on
 sick leave call-in.  Further, none of the employees who testified
 indicated that any notification was given to the Union before the
 publication was distributed or before the new policy was implemented.
 More importantly, there is no indication from the record that
 Respondent's supervisors were enforcing the new call-in policy on other
 than a sporadic basis until sometime around March 1980 at which time
 employee began to realize that a change in call-in procedures was being
 enforced by certain supervisors.  Finally, the so-called policy was not
 as obvious as Respondent maintains.  It is noted in this regard that the
 policy was not contained in the Depot article entitled "Sick Leave and
 You" under which an employee or the Union would likely look, but was in
 an article entitled "AWOL is a Curable Disease." An article, in fact,
 unlikely to be read by any employee who had been consistently following
 the established practice of calling in on the first day of illness.
 
    Secondly, Respondent now maintains, in its brief, that the dispute
 should be referred under the negotiated agreement for hearing under the
 applicable grievance and arbitration machinery.  If this matter involved
 a question of interpretation involving sick leave call-in under the
 parties collective bargaining agreement, Respondent would be correct.
 /7/ Unfortunately, it does not.  Respondent raised the issue that a
 matter of contract interpretation was involved for the first time, at
 the hearing.  While it has long been recognized that deferral to the
 negotiated grievance machinery is desirable, the dispute must be over a
 varying contractual interpretation of the parties.  The dispute in this
 matter involves not the negotiated procedures but an alleged past
 practice establishing employees rights to call-in only on the first day
 of sick leave.  A determination of whether there was a unilateral change
 of past practices which is involved in this matter does not require an
 interpretation of the parties agreement.  Further, the call-in procedure
 which Respondent unilaterally set is not covered by the agreement
 between parties.  Moreover, earlier, neither Respondent nor the Union
 contended that any dispute existed concerning any term of the collective
 bargaining agreement.  Accordingly, for the reasons stated above,
 Respondent's Motion to Dismiss is denied.
 
                             B.  Past Practice
 
    That parties may establish terms and conditions of employment by
 practice, or other forms of tactic or informal agreement, and these like
 other established terms and conditions of employment may not be altered
 by either party in the absence of agreement or impasse following good
 faith bargaining, is well established.  Department of the Navy, Naval
 Underwater Systems Center, Newport Naval Base, 3 FLRA No. 64 (1980).
 The record in this matter supports a finding that a past practice of
 requiring employees to call-in only on the first day of illness was
 established at the Depot.
 
    I agree with the General Counsel that sick-leave call in is a working
 condition per se.  Furthermore, the announced change in procedure
 carries with it the potential for disciplinary action, AWOL for not
 calling in, and most certainly is a matter involving employees
 conditions of employment.  It is, therefore found that Respondent's
 unilaterally imposing a requirement that employees call-in every day of
 sick leave or otherwise face disciplinary action impacted on their work
 conditions and any changes in the procedure constituted a change in
 conditions of employment which were subject to bargaining.
 
    It is equally well settled that an employer may not unilaterally
 change working conditions of unit employees without first notifying the
 collective bargaining representative of the affected employees and upon
 request, bargaining with it concerning the proposed changes.  Department
 of Treasury, Internal Revenue Service, Jacksonville District, 3 FLRA No.
 103 (July 1980).  This obligation inures to any condition of employment,
 including those established through past practice.  Department of the
 Treasury, U.S. Customs, Region I, Boston, Massachusetts, 1 FLRA No. 49
 (1979).
 
    The General Counsel established by a preponderance of the evidence
 that a past practice of requiring employees to call-in only on the first
 day of sick leave existed at the Depot prior to March 1980.  However,
 Respondent denies that a change occurred and claims that it was merely
 reaffirming an established policy on sick leave call-in.  But before
 Respondent can maintain that position, it must show the existence of a
 pre-established policy.  See Social Security Administration, Tulsa
 District Office, Tulsa, Oklahoma, 1 FLRA No. 67 (1979).  The evidence
 relied on by Respondent is scant.  Past practices generally include
 working conditions established through practice and followed by both
 parties to a collective bargaining agreement.  The record supports a
 finding that Depot employees called-in only on the first day of illness,
 for many years, as instructed by various supervisors.  While the
 "By-Line" of August 24 warned employees that they must call in every
 day, there is little evidence that Respondent vigorously pursued this
 stated policy.  The evidence shows that neither the Union or employees
 were aware of this new policy until employees became upset when told
 they had to call-in, almost six-months after the policy was allegedly
 implemented.  The record further disclosed that while some supervisors
 were aware of the policy announced in the "By-Line" that there was no
 vigorous effort on their part to implement that policy until well into
 1980.  Respondent's policy was indeed a well kept secret until sometime
 around March 1980 when efforts were made through supervisors meetings
 with employees to explain the exact nature of the new sick leave call-in
 policy.  In these circumstances, it is found that a past practice of
 allowing employees to call-in only on the first day of sick leave
 existed at the Depot as late as March 1980 and that a change in that
 procedure was implemented about that time requiring employees to call-in
 on each day of sick leave or face disciplinary action constituting a
 change in terms and conditions of employment as set out in section
 7103(a)(12) of the Statute, and is violative of section 7116(a)(5) and
 (1) of the Statute.
 
                             C. Formal Meeting
 
    The General Counsel contends that the March 12, 1980 meeting between
 Supervisor McCormick and the unit employees supervised by him
 constituted a formal discussion with unit employees and is a breach of
 its obligation under section 7114(a)(2)(A) of the Statute since it did
 not give the Union notice and an opportunity to attend the meeting and,
 therefore, was in violation of section 7116(a)(1) and (8) of the
 Statute.  /8/
 
    A review of the legislative history of the Statute 124 Cong.Rec.H
 9650, daily ed. Sept. 13, 1978 revealed the following:
 
          Section 7114(a)(3)(A) specifically provides that an exclusive
       representative shall be given the opportunity to appear at formal
       discussion between agency representatives and employees.  This
       subsection must be read in conjunction with subsection 7114(1)(1),
       requiring that a labor organization which has been accorded
       exclusive recognition is the exclusive representative for
       employees in its bargaining unit, and with subsection 7116(a)(8)
       which makes it an unfair labor practice for an agency to fail to
       comply with any provision of title VII, including the exclusivity
       rights of labor organizations with exclusive recognition.  The
       compromise inserts the word "formal" before discussions merely in
       order to make clear that this subsection does not require that an
       exclusive representative be present during highly personal,
       informal meetings such as counseling sessions regarding
       performance.  Of course, nothing in this section bars an agency
       and an exclusive representative from negotiating an agreement
       providing for a greater role for the representative than that
       minimally mandated by Title VII.  Moreover, nothing in this
       section authorizes agency management to bypass the rights of the
       exclusive representative and engage in direct communications with
       unit members.
 
    Under Section 10(e) of the Executive Order, as amended it was
 mandated that a Union, which is the exclusive bargaining representative
 be afforded the opportunity to be represented at formal discussions
 between management and employees concerning personnel policies and
 practices, or other matters affecting general working conditions of unit
 employees.  Department of Health, Education and Welfare, Social Security
 Administration, BRSI, Northeastern Program Service Center, 1 FLRA No. 88
 (1979).  Furthermore, in determining whether a meeting may be
 characterized as a "formal discussion", the Assistant Secretary
 established distinctions between meetings held for instructional
 purposes and those dealing with personnel policies and practices, and
 matters affecting general working conditions.  See, Department of
 Health, Education and Welfare, Social Security Administration, BRSI,
 Northeastern Program Center, supra;  Department of the Treasury,
 Internal Revenue Service, Chicago District, Chicago, Illinois, 8 ASLMR
 1046, A/SLMR No. 120 (1978).  While the Order is not binding in Statute
 matters it is most certainly a guide.  Under the Order a distinction was
 drawn between whether the meeting was convened to disseminate
 information concerning conditions of employment or to announce a change
 in employment conditions.  If held to announce a change the meeting was
 characterized as a formal discussion.
 
    In this matter, Respondent claims that the March 12, 1980 meeting was
 called by McCormick only to instruct employees on leave policy.
 However, if the subject matter under discussion involves personnel
 policies, practices or conditions of employment, and a change in
 existing policy with respect to sick leave call-in was announced and
 that change is of an existing condition of employment the Union is
 entitled to attend.  It is noted, that during this period at least one
 similar meeting was called by a supervisor working under Branch Chief
 Marino at the request of Chief Steward Arnolfo.  Arnolfo was also
 present at this meeting.  However, the meeting called by McCormick was
 at his own behest and no connection was established between this meeting
 and those called by Branch Chief Marino at the Chief Steward Arnolfo's
 request.  Further, the Union was neither notified nor given an
 opportunity to be present at the March 12 meeting.  In the
 circumstances, particularly since the meeting involved what Respondent
 termed the reaffirmation of an existing sick leave policy, which is a
 condition of employment, it is found that the meeting was a formal
 discussion within the meaning of the Statute and the failure to notify
 the Union or to allow the Union to be present constituted a violation of
 Section 7116(a)(1) and (8) of the Statute.
 
    In addition, the matter raises the question as to whether such a
 meeting with employees to announce a change in terms and conditions of
 employment constitutes a by-pass of the exclusive representative.
 
    It is also settled that an employer may not go directly to employees
 to discuss or announce changes in working conditions without first
 bargaining with the Union;  such conduct by an employer constitutes a
 by-pass of the exclusive representative and derogates its status in the
 exclusive representation of unit employees and is violative of the
 Statute.  See United States Air Force, Air Force Logistics Command,
 Aerospace Guidance and Meteorology Center Newark, Ohio, 4 FLRA No. 70
 (1980);  Internal Revenue Service, Washington, D.C., 4 FLRA No. 68
 (1980).
 
    As set out above, Supervisor McCormick called the March 12, 1980,
 meeting of employees under his supervision without notifying the Union
 and unilaterally announced a change in the established sick leave
 call-in practice.  Although union steward Blas was present at the
 meeting he was not given notification of the meeting in a normal manner
 but, was in attendance only because he was an employee working under the
 supervision of McCormick.  The calling of such a meeting without
 appropriate notice to the exclusive representative is an act in
 derogation of the bargaining representatives rights to represent
 employees and in violation of section 7116(a)(1) and (5) of the Statute.
 
    Based on the foregoing, it is found that Respondent violated Section
 7116(a)(1) and (5) by unilaterally changing a past practice without
 notification to or bargaining with the exclusive representative of its
 warehouse employees;  violated section 7116(a)(1) and (5) by dealing
 directly with unit employees with respect to personnel policies and
 practices or other matters affecting the general working conditions of
 unit employees;  and violated section 7116(a)(1) and (8) by holding a
 formal discussion without notifying and affording the Union as exclusive
 representative of the employees involved to be present.
 
    Having found and concluded that Respondent has violated section
 7116(a)(1), (5) and (8) of the Statute, I recommend that the Authority
 issue the following Order:  /9/
 
                                   ORDER
 
    Pursuant to 5 U.S.C. 7118(a)(7) and Section 2423.26 of the Final
 Rules and Regulations, 45 Fed.Reg. 3482, 3510 (1980), it is hereby
 ORDERED that the Defense Logistics Agency Defense Depot Tracy, Tracy,
 California shall:
 
    1.  Cease and desist from:
 
          (a) Unilaterally instituting changes with respect to sick leave
       call-in practices without providing notice to, and upon request,
       meeting and negotiating with the Laborers International Union,
       Local 1276, AFL-CIO, the exclusive representative of its
       employees, or any other exclusive representative.
 
          (b) Dealing directly with unit employees at the Defense Depot
       Tracy facility represented by the Laborers International Union,
       Local 1276, AFL-CIO with respect to personnel policies and
       practices or other matters affecting the general working
       conditions of employees at that facility.
 
          (c) Conducting formal discussions between management and unit
       employees, or their representatives, concerning personnel policies
       and practices, or other matters affecting general working
       conditions of employees in the unit, without notifying and
       affording Laborers International Union, Local 1276, AFL-CIO, the
       opportunity to be represented at formal discussions between
       management and employees, as their representative, concerning
       personnel policies and practices, or other matters affecting
       general working conditions of employees in the unit.
 
          (d) In any like or related manner interfering with, restraining
       or coercing its employees of their rights assured by the Statute.
 
    2.  Take the following affirmative action:
 
          (a) Upon request, meet and negotiate only with the Laborers
       International Union, Local 1276, AFL-CIO, the exclusive
       representative of its employees, with regard to personnel policies
       and practices, or other matters affecting the general working
       conditions of employees at the Defense Depot Tracy, Tracy,
       California.
 
          (b) Notify the Laborers International Union, Local 1276,
       AFL-CIO, of and afford it the opportunity to be represented at
       formal discussions between management and unit employees, as their
       representative, concerning personnel policies and practices, or
       other matters affecting general working conditions of employees in
       the unit.
 
          (c) Post at its Defense Depot Tracy, Tracy, California
       facility, copies of the attached Notice marked "Appendix" on forms
       to be furnished by the Federal Labor Relations Authority.  Upon
       receipt of such forms they shall be signed by the Director, and
       shall be posted and maintained by him for 60 consecutive days
       thereafter, in conspicuous places, including bulletin boards and
       other places where notices to employees are customarily posted.
       The Director shall take reasonable steps to insure that such
       notices are not altered, defaced, or covered by any other
       material.
 
          (d) Notify the Federal Labor Relations Authority, in writing,
       within 30 days from the date of this order, as to what steps have
       been taken to comply herewith.
 
                                       ELI NASH, JR.
                                       Administrative Law Judge
 
 Dated:  February 24, 1981
         Washington, D.C.
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF THE
 FEDERAL
 LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR
 EMPLOYEES THAT:
 
    WE WILL NOT institute changes concerning the procedures for sick
 leave call-in without first notifying the Laborers International Union,
 Local 1276, AFL-CIO and affording it the opportunity to bargain
 concerning the implementation of such changes and their impact on
 adversely affected employees.
 
    WE WILL NOT deal directly with unit employees of the Defense Depot
 Tracy, Tracy, California represented exclusively by the Laborers
 International Union, Local 1276, AFL-CIO, with respect to personnel
 policies and practices, or other matters affecting the general working
 conditions of employees in Defense Depot Tracy, Tracy, California.
 
    WE WILL NOT conduct formal discussions between management and unit
 employees, or their representatives, concerning personnel policies and
 practices or other matters affecting general working conditions of
 employees in the unit, without notifying and affording, Laborers
 International Union, Local 1276, AFL-CIO, the exclusive representative
 of our employees, the opportunity to be represented at such discussions.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce our employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL, upon request, meet and negotiate in good faith only with the
 Laborers International Union, Local 1276, AFL-CIO, with respect to
 personnel policies and practices, or other matters affecting the general
 working conditions of employees in Defense Depot Tracy, Tracy,
 California.
                                       (Agency or Activity)
                                       (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting and must not be altered, defaced or covered by any other
 material.
 
    If employees have any question concerning this Notice, or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director, Federal Labor Relations Authority, Region 9, whose
 address is:  450 Golden Gate Avenue, Room 11408, P.O. Box 36016, San
 Francisco, CA 94102.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Respondent excepts to the Judge's failure to consider the
 affidavit of Nancy I. Powers, attached to its motion to dismiss, which
 allegedly shows that the Union had knowledge of the change in policy as
 early as August 1979.  Noting particularly unrebutted record testimony
 to the contrary, and that Powers was not called to testify at the
 hearing and thus was not subject to cross-examination, the Authority
 finds that the Judge did not err in giving no weight to such affidavit
 or in concluding "that neither the Union nor employees were aware of
 this new policy until employees became upset when told they had to call
 in, almost six months after the policy was allegedly implemented."
 
 
    /2/ Section 7114(a)(2)(A) reads as follows:
 
          (a)(2) An exclusive representative of an appropriate unit in an
       agency shall be given the opportunity to be represented at--
 
          (A) any formal discussion between one or more representatives
       of the agency and one or more employees in the unit or their
       representatives concerning any grievance or any personnel policy
       or practices or other general condition of employment(.)
 
 
    /3/ See Internal Revenue Service (District, Region, National Office
 Unit), 11 FLRA No. 23 (1983), affirmed sub nom. National Treasury
 Employees Union v. FLRA, 725 F.2d 126 (D.C. Cir. 1984);  Kaiserslautern
 American High School, Department of Defense Dependents Schools, Germany
 North Region, 9 FLRA 184 (1982);  Division of Military and Naval
 Affairs, State of New York, Albany, New York, 8 FLRA 307 (1982);  U.S.
 Department of the Air Force, 47th Air Base Group (ATC), Laughlin Air
 Force Base, Texas, 4 FLRA 469 (1980).
 
 
    /4/ Ms. McCurry, who left work at the Depot, and then returned
 testified that when she returned to work two and a half years ago, she
 was told of a change with respect to sick leave call-in, but that change
 concerned only employees who were sent home by the dispensary;  they
 were requested to call in the following day if they remained out, but
 thereafter were not expected to call-in each day.
 
 
    /5/ Article X, provides in pertinent part:
 
          Section 1:  Sick leave shall be approved in advance upon
       request by an employee to the supervisor when the employee has an
       appointment for dental, optical or medical examination or
       treatment.  No policy will be established by the Employer limiting
       the number of hours of sick leave for such appointments.  Leave
       may be taken in 15-minute increments.
 
          Section 2:  Sick leave shall be granted to an employee when
       incapacitated for the performance of duty by sickness, injury,
       when a member of the immediate family of the employee is afflicted
       with a contagious disease, (or the employee is otherwise exposed
       to such disease) or when the presence of the employee at his post
       of duty would jeopardize the health of others.  In these instances
       when advance notice of absence cannot be given to the Employer,
       the employee is responsible for notifying the supervisor, or his
       designated representative in the absence of the supervisor, as
       early as possible but not later than four hours after the
       beginning of the first regular duty shift for which incapacitated.
        This four-hour limitation may be wai