18:0001(1)CA - Treasury, Customs Service and Customs Service Region VI and NTEU and NTEU Chapter 143 -- 1985 FLRAdec CA



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18:0001(1)CA
The decision of the Authority follows:


 18 FLRA No. 1
 
 UNITED STATES DEPARTMENT OF THE TREASURY 
 UNITED STATES CUSTOMS SERVICE 
 AND UNITED STATES CUSTOMS SERVICE, 
 REGION VI 
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION 
 AND NATIONAL TREASURY EMPLOYEES UNION,
 CHAPTER 143 
 Charging Party
 
                                            Case No. 6-CA-639
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Authority" in accordance with
 section 2429.1(a) of the Authority's Rules and Regulations.
 
    Upon consideration of the entire record, including the stipulation of
 facts, accompanying exhibits, and the parties' contentions, the
 Authority finds:
 
    At all times relevant herein, the National Treasury Employees Union
 has been the certified exclusive representative of a consolidated unit
 which includes certain non-professional, non-supervisory employees at
 the El Paso District of U.S. Customs Service, Region VI.  The National
 Treasury Employees Union, Chapter 143 has been the local representative
 of National Treasury Employees Union at the El Paso District of U.S.
 Customs Service, Region VI (hereinafter, National Treasury Employees
 Union and National Treasury Employees Union, Chapter 143 will be
 referred to collectively as the Union).
 
    On six occasions, from January 1977 to March 17, 1980, the Respondent
 permitted the Union to represent bargaining unit employees in grievances
 filed under the agency grievance procedure concerning promotion actions
 to threshold supervisory positions.  Employee Willie A. Perez was
 represented by the Union in one of these grievances which was filed in
 April 1977.  On no occasion from January 1977 to March 17, 1980, did
 Respondent refuse to allow union representation of bargaining unit
 employees in grievances under the agency grievance procedure concerning
 promotion actions where such representation had been requested by the
 employee.
 
    By letter dated November 7, 1979, employee Willie A. Perez grieved,
 under the agency grievance procedure, his non-selection for the position
 of Supervisory Customs Inspector, designating the Union as his
 representative.  On March 17, 1980, he was notified by Respondent of the
 disallowance of his choice of representative pursuant to 5 CFR 771 /1/
 on the grounds that representation by the Union in a grievance based on
 non-selection to a supervisory position constitutes a conflict of
 interest.
 
    The Union protested the decision and Respondent reversed itself on
 April 14, 1980.  However, Respondent made a final determination on April
 17, 1980 reaffirming the disallowances of union representation for
 employee Perez.
 
    The amended complaint alleges that on or about April 17, 1980,
 Respondent violated section 7116(a)(1) and (5) of the Statute /2/ by
 refusing and continuing to refuse to bargain in good faith with the
 Union when it unilaterally changed its past practice concerning union
 representation of bargaining unit employees in agency grievances
 concerning promotion actions to threshold supervisory positions, without
 furnishing the Union notice and/or an opportunity to bargain.
 
    The Authority finds, in agreement with the General Counsel's and
 Charging Party's contentions, that in Region VI of the U.S. Customs
 Service there existed a consistent practice over a period of years
 whereby Respondent's officials affirmatively permitted union
 representation of bargaining unit employees in agency grievances
 concerning promotion actions to threshold supervisory positions.
 
    However, for the reasons stated in Nuclear Regulatory Commission, 17
 FLRA No. 132 (1985), and cases cited therein, the Authority concludes
 that the unilateral change in this practice did not constitute a
 violation of section 7116(a)(1) and (5) of the Statute.  Although there
 was a past practice and a unilateral change took place, it was not a
 change in the conditions of employment of bargaining unit employees and
 hence there was no obligation to bargain.  Accordingly, the complaint
 shall be dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 6-CA-639 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., May 14, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 CFR 771 as in effect at all material times until December 31,
 1979, reads in pertinent part as follows:
 
          Sec. 771.105 Presentation of grievance.
 
          (a) An employee, in presenting a grievance under an agency
       grievance system shall:
 
                                  * * * *
 
          (2) Have the right to be accompanied, represented, and advised
       by a representative of his own choosing;  and
 
                                  * * * *
 
          (c) The agency shall have the right:
 
                                  * * * *
 
          (2) to disallow any selection the employee makes with regard to
       a representative on the grounds of conflict of interest or
       conflict of position.
 
          (d) The employee shall have the right to challenge the decision
       to disallow his/her choice of representative to the head of the
       agency or a person the head of the agency has designated, in
       accordance with procedures described in the agency grievance
       system.  The decision of the head of the agency or his/her
       designee will be made no later than 10 days after receipt of the
       employee challenge unless another reasonable time limit is
       specified in the agency grievance system.  The decision will be
       final.
 
    On December 31, 1979, 5 CFR 771 was revised and now reads as follows:
 
          Sec. 771.302.  Criteria
 
          The following criteria shall govern the establishment and
       administration of an agency administrative grievance system:
 
                                  * * * *
 
          (c) Assurance to the grievant of:
 
                                  * * * *
 
          (2) The right to be accompanied, represented, and advised by a
       representative of his or her own choosing, except that an agency
       may disallow the choice of an individual as a representative which
       would result in a conflict of interest or position, which would
       conflict with the priority needs of the agency, or which would
       give rise to unreasonable costs to the Gov