24:0758(75)CA AFGE, LOCAL 2382 VS VA MEDICAL CENTER -- 1986 FLRAdec CA



[ v24 p758 ]
24:0758(75)CA
The decision of the Authority follows:


24 FLRA NO. 75
VETERANS ADMINISTRATION
MEDICAL CENTER
PHOENIX, ARIZONA

     Respondent

     and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2382, AFL-CIO

     Charging Party

Case No. 8-CA-50153

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 as alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent and the General Counsel filed exceptions to the Judge's Decision.

Pursuant to section 2423.29 of the Agency'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, the exceptions, and the entire record, the Authority [ v24  p758 ] hereby adopts the Judge's findings, conclusions, and recommended order.

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that Veterans Administration Medical Center, Phoenix, Arizona shall:

1. Cease and desist from:

(a) Unilaterally discontinuing the practice of permitting a Union Secretary duty time to work on labor-management relations matters at the Union office when it had agreed to such a lawful arrangement.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute:

(a) Post at its Phoenix, Arizona Medical Center 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 Director 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.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VIII, Federal Labor Relations Authority, 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071, in [ v24  p759 ] writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, D.C. December 22, 1986.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v24  p760 ]

                         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 discontinue the practice of permitting a Union Secretary duty time to work on labor-management relations matters at the Union office when we had agreed to such a lawful arrangement.

WE WILL NOT in like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute.

                                 __________________________
                                         (Activity)

Dated: _____________________ By: __________________________
                                        (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 questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region VIII, Federal Labor Relations Authority, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071, and whose telephone number is (213) 894-3805. [ v24  p761 ]

VETERANS ADMINISTRATION
MEDICAL CENTER
PHOENIX, ARIZONA

     Respondent

     and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2382, AFL-CIO

     Charging Party

Case No. 8-CA-CA-50153

Gregory G. Ferris, Esq.
     For the Respondent

Robert F. Johansson
     For the Charging Party

Jonathan L. Levine, Esq.
     For the General Counsel

Before: SALVATORE J. ARRIGO
        Administrative Law Judge

DECISION

Statement of the Case

This case arose under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq.

Upon an unfair labor practice charge filed by the American Federation of Government Employees, Local 2382, AFL - CIO (herein referred to as the Union) against Veterans Administration Medical Center, Phoenix, Arizona (herein referred to as Respondent), the General Counsel of the Authority, by the Acting Regional Director for Region VIII, issued a Complaint and Notice of Hearing alleging Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally changing a practice of permitting employees who occupied the position of Union Secretary to perform Union representational duties on official time.

A hearing on the Complaint was conducted in Phoenix, Arizona at which all parties were represented and afforded full opportunity to adduce [ v24  p762 ] evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by counsel for Respondent and counsel for the General Counsel and have been carefully considered.

Upon the entire record in this case, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following findings of fact and conclusions of law.

At all times material herein the American Federation of Government Employees, AFL - CIO has represented various employees of the Veterans Administration including employees located at the Veterans Administration Medical Center in Phoenix, Arizona. Local 2382 provides direct representation for unit employees at the Phoenix facility, infra.

In April 1983 it came to the attention of Local 2382 President Robert Johansson that Ardis Haines, the Local Union Secretary, was unable to complete Union secretarial duties on off-duty time. Accordingly, Johansson met with Barbara Watkins, Chief of Dietetic Services at Respondent's Phoenix facility, and suggested that food service employee Haines be permitted to perform "mainly" labor - Management secretarial work for the Union on duty time. According to Johansson, 2 Watkins agreed that when Haines had Union secretarial work to perform as described, she would request permission from her first line supervisor (a subordinate of Watkins) for release between the hours of 2:30 p.m. and 3:00 p.m. if her food service work was not required. Johansson told Haines of the agreement and explained that work during duty time in the Union office should be confined to appropriate labor-management related matters. Thereafter, according to Haines, who worked an 11:30 a.m. to 8:00 p.m. shift, she went to the Union office one to three days a week between the hours of 2:30 p.m. and 3:00 p.m. 3 While at the Union office during [ v24  p763 ] these times Haines typed various documents dealing with labor-management relations matters such as rough drafts of contract proposals, grievances and correspondence between the Union and Respondent's management personnel.

In January 1984, Sandra Candell succeeded Haines as Union Secretary. Candell was a Medical Clerk - Typist in Respondent's Dialysis Unit under the direct supervision of Dr. Navin K. Sharma, Chief of the Nephrology Section. Accordingly, Union President Johansson met with Sharma and informed him of Candell's Union position and related that the prior Union Secretary had performed work for the Union during duty time and he would like to "negotiate" 4 with him as to the duty time hours Candell would be able to work for the Union. Sharma indicated he would attempt to work out a suitable agreement with Johansson so Candell could work for the Union as Secretary during duty hours without infringing on her duties for the Nephrology Section. Johansson requested that Candell be permitted to go to the Union office each Monday, Wednesday and Friday from 7:30 a.m. to 8:30 a.m. and for one-half hour on Tuesdays and Thursdays. Shortly thereafter, according to Sharma, he informed Candell she could go to the Union office on Mondays, Wednesdays and Fridays from 7:30 a.m. to 8:30 a.m. but release from work on Tuesdays and Thursdays would be left for further discussion. 5 Accordingly, Candell thereupon went to the Union office almost every Monday, Wednesday and Friday between 7:30 a.m. and 8:30 a.m. and typed memoranda and letters for Union officials to management, proposals for contract negotiations and grievances. 6 Candell estimated that while 80 percent of her time was spent typing such materials, she also typed "minutes of meetings" during duty hours. 7

Sometime in August or early September 1984 Candell attended a training session and while reporting this time as administrative leave to Jerry Congelton, the Secretary for Medical Services at the facility, a question arose as to whether Candell's duty time spent in the Union office should also be reported as administrative leave. Congelton said she'd look into the matter and shortly thereafter, Dr. Sharma was informed by Martin Lieberman, Respondent's Assistant Personnel Officer, he could not grant Candell permission to use duty time for Union business but that Sharma [ v24  p764 ] could grant Candell annual leave for that purpose. 8 Sharma notified Candell of this around the middle of October 1984 and Candell ceased going to the Union office on duty time. In March 1985 Candell ceased employment with Respondent her office as Union Secretary.

Counsel for the General Counsel contends that by virtue of an explicit agreement between Union President Johansson and Respondent's supervisors Watkins and Sharma, the existence of a practice was established whereby the occupant of the position of Union Secretary was permitted to work in the Union office during regular duty hours. That practice continued from April 1983 until unilaterally terminated in October 1984.

Respondent argues that under the circumstances herein no practice cognizable under the Statute was established. Respondent further argues that the performance of Union secretarial work during duty time is contrary to the proscription of section 7131(b) of the Statute. Respondent further contends that provisions found in the parties' collective bargaining agreements preclude the use of Union secretarial personnel for such work during duty time.

The Practice

The facts herein establish that through a verbal agreement between supervisor Watkins and Union President Johansson in April 1983, Union Secretary Haines was permitted to perform Union secretarial work, supra, on duty time. Thereafter, pursuant to that agreement Haines followed the practice of going to the Union office to perform such duties for one-half hour one to three days a week until January 1984. When Sandra Candell succeeded Haines as Union Secretary in January 1984, Candell's supervisor, Dr. Sharma, after being informed by Johansson of the prior arrangement, agreed that Candell could go to the Union office from 7:30 a.m. to 8:30 a.m. on Mondays, Wednesdays and Fridays. Thereafter, until October 1984, Candell followed the practice of going to the Union office during the allowed duty time to perform Union secretarial duties pursuant to Johansson's request and Sharma's agreement to accede to the request. Thus, in my view a practice was established whereby following acquiescence by the individual employee's supervisor, Union Secretary Candell was permitted to perform Union secretarial duties on official time. [ v24  p765 ]

However, I do not find that a practice of allowing any employee who serves as Union Secretary to perform such duties on official time was established. Before either Secretary Haines or Candell used duty time to work on Union matters, Johansson sought and obtained the agreement of each of their supervisors separately and such agreement extended only to the employee within each supervisor's control. Further, there was no evidence that either supervisor Watkins or Sharma was authorized to bind the entire facility regarding employees outside of their immediate supervision or held such positions in Respondent's chain of command where such authority could be inferred. Nor has it been established that any similar general practice regarding other Union officers existed. Thus, although Assistant Personnel Officer Lieberman testified that when the Union previously desired official time to engage in Union activities the Union made a request to Respondent's Director in writing through the Chief of Personnel, Union President Johansson testified that while the Union did follow the practice of making a request through Personnel Services for administrative time for Union related training, such as steward training, when he took office in 1979 he orally requested and was granted from his Service Chief (supervisor) an average of three hours a day duty time to engage in Union duties, following the same procedure used by the previous Union President to obtain official time for conducting Union duties. The record discloses no other similar situations. The most that might be concluded herein is that when the Union desired duty time for work or labor-management matters, the Union followed the practice of requesting such from the Union official's supervisor on a case by case basis.

It has been long held that a term and condition of employment may be established if a practice is consistently exercised for an extended period of time with the knowledge and consent of Respondent's supervisors. See Department of the Navy, Naval Underwater Systems Center, Newport Naval Base, 3 FLRA 413 (1980); Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 5 FLRA 352 (1981); and U.S. Immigration and Naturalization Service, 16 FLRA 1007 (1984), Respondent argues that the alleged practice did not occur with the full knowledge and consent of both parties and with such frequency over a sufficiently long period of time that a reasonable person would expect it to continue. Respondent suggests, rather, that what occurred was a "somewhat clandestine attempt to establish a practice behind responsible Management's back." In this regard Respondent further contends that Sharma "should not be considered informed, responsible management...."

I reject Respondent's contentions. The practice found herein followed an express agreement between Dr. Sharma and President Johansson after Sharma was advised of the prior Union Secretary having been permitted duty time to perform Union work by her supervisor. As found herein, the evidence did not disclose that Johansson made any misrepresentation to Sharma in this regard. Thereupon, Candell openly went to the Union office regularly three days a week for an hour each time for about nine months. Further, if Respondent wished to limit the ostensible authority of Sharma [ v24  p766 ] regarding the activities of employees under his supervision, 9 it should have so informed him of its wishes when training or instructing supervisors on the extent of their authority. If Sharma was inexperienced or "uncomfortable" in dealing with labor-management relations matters, he was free to seek advice before acting.

The Proscription of section 7131(b)

Section 7131(b) of the Statute provides:

"(b) Any activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a non-duty status."

In American Federation of Government Employees, AFL - CIO Local 2823 and Veterans Administration Regional Office Cleveland, Ohio, 2 FLRA 4 (1979), the Authority "closely examined" the meaning and purpose of section 7131(b) of the Statute. In that case, after reviewing the specific language and legislative history of section 7131(b), the Authority concluded that to be an activity related to the internal business of a labor organization within the meaning of section 7131(b) that activity must be solely related to the internal structure and institution of a labor organization. In coming to its conclusion the Authority, in part, relied upon the legislative history of the Statute 10 which stated that the language found in section 7131(b) proscribing the use of duty time by employees for activities relating to internal business of a labor organization did not apply to activities of labor organizations which involved an "interface" with management such as negotiations, grievances, negotiability disputes, and unfair labor practices nor the preparation for such activities. In subsequent cases the proscriptions found in section 7131(b) has been narrowly construed by the Authority. See American Federation of Government Employees AFL - CIO, Local 1692 and Headquarters, 323rd Flying Training Wing (ATC), Mather Air Force Base, California, 3 FLRA 305 (1980); National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 6 FLRA 508 at 518-520 (1981); and National Federation of Federal Employees, Local 29 and Department of the Army, Kansas City District, Corps of Engineers, Kansas City, Missouri, 11 FLRA 7 (1983). [ v24  p767 ]

In the case herein the record reveals that Candell spent approximately 80 percent of her time typing correspondence from the Union to management, contract proposals and counterproposals, grievances and letters concerning grievances. In my view Candell's typing such documents was an activity involving the Union's "interface" with management and not solely related to the internal structure and institution of the Union. Accordingly, I conclude such conduct was not contrary to the proscription of section 7131(b) of the Statute and I reject Respondent's contention with regard thereto.

The Collective Bargaining Agreements

Respondent contends that the parties' Master Agreement and local agreement "clearly" preclude the Union from permitting the Union Secretary access to the Union office during duty time.

On June 12, 1979 the American Federation of Government Employees (AFGE) was certified as the exclusive representative of a national consolidated unit of various Veterans Administration employees including non-supervisory, non-professional employees (with some exceptions) at the Phoenix, Arizona facility. Apparently Local 2382 had represented employees at that facility since 1972 and after AFGE and the Veterans Administration executed a Master Agreement in August 1982, a local agreement between Local 2382 and Veterans Administration, Phoenix in existence since 1972 continued in effect as a supplemental agreement between the parties.

Article 8, Section 5 of the Master Agreement provides:

"Section 5 - Official time for local union officers and/or stewards will be a proper subject for local supplemental bargaining."

Article XIV, Section 5 of the local agreement, after making provisions for Union office space on Respondent's premises, states:

"A Union representative who is off duty during daytime hours may staff the office during hours set by the Union. The office space may be used to house Union records, material and equipment. It may also be used by Union representatives when specifically authorized official time to prepare a case when representing employees at hearings. Official time may not be authorized for the daily staffing of the Union office."

Further, section 7131(d) of the Statute provides:

"(d) Except as provided in the preceding subsections of this section-- [ v24  p768 ]

"(1) any employee representing an exclusive representative, or

"(2) in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative,

shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest."

Respondent argues the Master Agreement envisioned bargaining on official time for Local Union officers would occur at the local level and indeed, the local agreement specifically addresses the matter of official time thereby precluding the establishment of a practice concerning official time for Union representatives which goes beyond the terms of the existing agreement. To support this argument Respondent notes that in August 1984 the Union submitted a written contract proposal to Respondent which would amend the local agreement by explicitly authorizing the Union Secretary three hours a day duty time to engage in Union secretarial duties. 11

Clearly under section 7131(d) of the Statute the amount of official time granted to a Union representative is a negotiable matter. While Article XIV, Section 5 of the local agreement provides that the Union office may be used by Union representatives when specifically authorized official time to prepare a case for a hearing, the article does not indicate that the parties may not extend its terms by agreement by responsible Union officials and supervisors on a case by case basis. Further, no evidence was submitted to explain the meaning of the terms "staff" or "staffing" of the Union office as used in that Article.

In order to constitute a waiver of a bargainable right, such waiver must be clear and unmistakable and consciously yielded. See Library of Congress, 9 FLRA 421 (1982) and Internal Revenue Service (District, Region, National Office Units), 16 FLRA 904 (1984) and cases cited in fn. 21 at 922-923. No clear and unmistakable waiver of the right to bargain on the use of duty time to be granted a Union representative is present herein and therefor, the Union was free to obtain whatever official time for Candell's Union secretarial duties it could negotiate. Indeed, as [ v24  p769 ] stated supra, Candell's use of duty time to perform permissible Union secretarial duties was the product of an express agreement between the Union and an agent of management. Accordingly, in the circumstances herein, I reject Respondent's contentions that the collective bargaining agreements preclude Candell's use of duty time to work at the Union office.

In view of the entire foregoing I conclude Respondent, by unilaterally withdrawing permission allowing Union Secretary Candell use of duty time to work on Union matters as described herein to the extent such activities were not related to the internal structure and institution of the Union, violated sections 7116(a)(1) and (5) of the Statute and recommend the Authority issue the following Order. However, since I have concluded that the practice found herein followed from specific permission granted to Candell by her supervisor and such permission did not go beyond the particular agreement of the supervisor relative to the employee within his supervision, and Candell is no longer employed by Respondent, I shall not order that the practice be restored to the status quo ante.

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that Veterans Administration Medical Center, Phoenix, Arizona shall:

1. Cease and desist from:

(a) Unilaterally discontinuing the practice of permitting Union Secretary Sandra Candell duty time to work on labor-management relations matters each Monday, Wednesday and Friday from 7:30 a.m. to 8:30 a.m. at the Union office.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute:

(a) Post at its Phoenix, Arizona Medical Center 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 Director and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps [ v24  p770 ] shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VIII, Federal Labor Relations Authority, 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

SALVATORE J. ARRIGO
Administrative Law Judge

Dated: January 13, 1986
       Washington, D.C.

[ v24  p771 ]

              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 STATUTE
       WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally discontinue the practices of permitting Union Secretary Sandra Candell duty time to work on labor-management relations matters each Monday, Wednesday and Friday from 7:30 a.m. to 8:30 a.m. at the Union office.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

                           ________________________________
                                 (Agency or Activity)

Dated: _______________ By: ________________________________
                                     (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 questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region VIII, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071, and whose telephone number is: (213) 688-3805. [ v24  p772 ]

FOOTNOTES

Footnote 1 We agree with the Judge's ruling to reject the Respondent's offer of a written statement by a former employee whom it did not call as a witness, because it presented no opportunity to cross examine the witness, and there was no showing that the witness, who had taken a job at a Veterans Administration facility in Texas, was unavailable at the time of the hearing.

Footnote 2 Watkins was not called as a witness.

Footnote 3 Haines testified she requested permission to leave from her two supervisors, Washington and Watley. Haines testified that she did not sign out when Washington, who was her supervisor the majority of times, was on duty. Washington was not called as a witness. Watley testified he was not aware of the Watkins-Johansson agreement or that Haines was away from her job on Union business on a regular basis. An employee "sign-out" sheet for Union business does not reflect Haines regularly leaving her job. However, Haines and Watley both testified that Watley insisted on Haines signing out but she did not always comply. From the testimony and exhibits it is apparent that Haines resisted the sign out requirement and it was a continuing source of controversy between Haines and Watley. In any event, I credit Johansson and Haines regarding the establishment and subsequent practice of Haines going to the Union office on duty time.

Footnote 4 The word used by Sharma in relating this conversation.

Footnote 5 Candell testified that Sharma told her she would be permitted to go to the Union office on Tuesdays and Thursdays as well. However, I credit Sharma's recollection of this conversation.

Footnote 6 Candell testified that she also performed typing for the Union on off-duty hours.

Footnote 7 I assume "minutes of meetings" refers to minutes of Union membership meetings.

Footnote 8 Lieberman testified that he told Sharma it was "inappropriate" to permit Candell use of duty time for this purpose. Lieberman further testified that he had previously been unaware of the arrangement and, in coming to his conclusion, he relied on Article 8, Section 5 of the Master Agreement between the Veterans Administration and the American Federation of Government Employees which states, infra: "Official time for local union officers and/or stewards will be a proper subject for local supplemental bargaining." Lieberman saw the matter as negotiable between the Union and a "responsible" management official.

Footnote 9 Respondent's Answer to the Complaint herein admits that Sharma was a supervisor within the meaning of section 7103(a)(10) of the Statute and a management official within the meaning of section 7103(a)(11) of the Statute.

Footnote 10 124 Cong. Rec. H 9638 (daily ed. Sept. 13, 1978).

Footnote 11 The Union's proposal would also provide various amounts of official time to the Union's President, other officers and stewards. In my view, recourse to the Union's proposal is of no assistance in resolvin