25:0685(57)CA - Military Entrance Processing Station, Los Angeles, CA and AFGE Local 2866 -- 1987 FLRAdec CA
[ v25 p685 ]
The decision of the Authority follows:
25 FLRA No. 57 MILITARY ENTRANCE PROCESSING STATION LOS ANGELES, CALIFORNIA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2866, AFL-CIO Charging Party Case Nos. 8-CA-50566 8-CA-60005 DECISION AND ORDER I. Statement of the Case This consolidated unfair labor practice case is before the Authority based on exceptions filed by the General Counsel and cross-exceptions filed by the Respondent to the attached Decision of the Administrative Law Judge. The exceptions and cross-exceptions are limited to the Judge's Decision in Case No. 8-CA-50566. The Respondent also filed an opposition to the General Counsel's exceptions. The complaint in Case No. 8-CA-60005 alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it unilaterally confiscated the Union's filing cabinet. The Judge concluded that the Respondent's conduct in unilaterally confiscating the Union's filing cabinet constituted a violation of section 7116(a)(1) and (5) of the Statute. The Judge found that because the Respondent had provided the Union with the cabinet in 1983, it was obligated to bargain with the Union prior to depriving the Union of its use. No exceptions were filed by any party with respect to the Decision of the Judge in Case No. 8-CA-60005. Noting that the Judge's conclusion is supported by substantial reasoning and noting particularly the absence of exceptions, we adopt the Judge's conclusion and supporting rationale in Case No. 8-CA-60005. The complaint in Case No. 8-CA-50566 alleged that the Respondent unilaterally implemented a change in the procedure concerning (1) how non-employee representatives of the Charging Party gain access to the Respondent's facility, and (2) when such representatives can meet with bargaining unit employees. The complaint alleged that this unilateral change violated section 7116(a)(1) and (5) of the Statute. II. Background of Case No. 8-CA-50566 There are two separate allegations in this case. The first concerns whether the Respondent unilaterally changed the manner in which the Union president, a non-employee of the Military Entrance Processing Station (the Station), gained access to the Station. The Judge noted that the parties disagreed over when the change occurred. The Respondent maintained that the change occurred at a meeting in January 1985, more than six months prior to the date on which the charge was filed. The Respondent argued therefore that the complaint must be dismissed as untimely filed under section 7118(a)(4)(A). The General Counsel argued that the change did not occur until July 1985, when the Union representative received a letter in which he was reminded that he was to schedule his meetings in advance through the Commander. The Judge found that for many years the Union president had gained access to the Station through the Respondent's supervisors, and that this practice was unilaterally changed by the Commander at a meeting on January 15, 1985, when she informed the president that thereafter all permission for access to the Station would be through her office. The Judge further found that the July letter merely reiterated the January 15 instruction. Therefore, he concluded that section 7118(a)(4)(A) of the Statute mandated dismissal of the complaint because the charge was filed on September 18, 1985, more than six months after the change in the manner of access to the Station had occurred. The Judge rejected the General Counsel's contention that because the instruction was not conveyed to subordinate supervisors and the Union president continued to follow the past procedure, the change did not occur until July. The Judge noted that (1) because the Union president was the only non-employee affected, there was no reason for the Commander to suspect that he would not follow the procedure; and (2) when the Union president was observed violating the procedure the Respondent took immediate action. The Judge also concluded that if the charge had been timely filed, he would have found that the unilateral change in the manner of access to the Station was a change in a condition of employment established by past practice in violation of section 7116(a)(1) and (5) of the Statute. The second allegation of the complaint concerned the Respondent's alleged change in the scheduling of meetings between Union representatives and employees without negotiating over the substance of the change. As to this allegation, the Judge concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute. He found that both the Union steward and the president were informed on or about September 12, 1985, that thereafter all meetings would have to be scheduled after 11:30 a.m. He further found that no restraint had been placed on the scheduling of these meetings prior to this change. The Judge concluded that the Respondent unilaterally changed an established condition of employment without engaging in the bargaining required by the Statute. III. Positions of the Parties The General Counsel excepted to the Judge's dismissal for untimeliness of the aspect of the consolidated complaint in Case No. 8-CA-50566 concerning the alleged unilateral change in the manner in which non-employee Union representatives gained access to the Station. The General Counsel reiterated arguments previously made to the Judge that the change in the manner of access did not occur until July 1985. The Respondent opposed the General Counsel's exceptions, repeating arguments previously made to the Judge concerning both timeliness and the merits of the unfair labor practice allegations. The Respondent repeated these arguments in its cross-exceptions, where it contends that (1) the change in the manner of access to the Station was not negotiable because it was an exercise of the Respondent's right to designate its representatives and (2) the change in the scheduling of meetings between Union representatives and bargaining unit employees was not negotiable because it was an exercise of its right to assign work which had an insufficient impact on working conditions to trigger an obligation to bargain. IV. Analysis We conclude, in agreement with the Judge, that the unfair labor practice charge in Case No. 8-CA-50566 concerning the change in the manner of access to the Station was not filed within six months of the occurrence of the change, and therefore the complaint must be dismissed under section 7118(a)(4)(A) of the Statute. The Judge's findings and conclusions are supported by substantial evidence in the record, and we affirm them. Because we agree with the Judge that the charge was untimely filed, we find it unnecessary to consider and do not pass upon the Judge's discussion as to what his conclusion would have been had the charge been filed timely. We also conclude, in agreement with the Judge, that the Respondent's unilateral change in the scheduling of Union representatives' meetings with bargaining unit employees constituted a change in a condition of employment in violation of section 7116(a)(1) and (5) of the Statute. We reach this conclusion for the following reasons. The Agency unilaterally changed its policy concerning when unit employees can use official time to meet with non-employee union representatives. That change involves the use of official time which section 7131(d) of the Statute authorizes the parties to negotiate. In section 7131(d), Congress provided that agencies and unions should jointly determine through negotiations the amount of official time to be available to employees during any given time period that is "reasonable, necessary, and in the public interest." See American Federation of Government Employees, Council of Locals No. 214 (v.) FLRA, 798 F.2d 1525, 1530 (D.C. Cir. 1986). To the extent that the Agency's objection to negotiating over the substance of its decision to change its policy regarding amounts of official time available to employees during morning hours is grounded in a generalized concern to carry out its mission, such as generalized concern "cannot displace a specific congressional provision providing for the negotiability of official time proposals." Id. Further, insofar as the Agency's objection to negotiating over the substance of its policy change is based on management's right to assign work under section 7106(a) of the Statute, this objection must also be rejected. Section 7131(d) "carves out an exception" to management's right to assign work; otherwise, that right "would preclude any negotiation of official time provisions, since official time always affects an agency's ability to assign work." 798 F.2d at 1530-31 (n).8. See also, National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration Medical Center, Brockton/West Roxbury, Ma., 23 FLRA No. 74 (1986), slip op. at 4. Therefore, the use of official time under section 7131(d) -- that is, its amount, allocation and scheduling -- is negotiable absent an emergency or other special circumstances not present in this case. See, for example, section 7106(a)(2)(D). Parties may protect their interests in the negotiation process. See AFGE, Council of Locals No. 214, 798 F.2d at 1530 ("An agency has no obligation to abandon what it conceives to be the best interests of the agency merely because it must negotiate on an official time proposal."). The substance of the Agency's decision to change its policy regarding amounts of official time to be available to employees during morning hours was therefore negotiable, and consequently the Agency's decision to implement this change without bargaining was an unfair labor practice. /*/ V. Conclusion Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing, find that no prejudicial error was committed, and affirm those rulings. We have considered the Judge's Decision and the entire record, and adopt the Judge's findings, conclusions and order as modified above. ORDER Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Military Entrance Processing Station, Los Angeles, California, shall: 1. Cease and desist from: (a) Failing or refusing to negotiate in good faith with American Federation of Government Employees, Local 2866, AFL-CIO, the exclusive representative of its employees, by unilaterally changing the past practice whereby Union officials are allowed to meet for representational purposes prior to 11:30 a.m. (b) Failing or refusing to negotiate in good faith with American Federation of Government Employees, Local 2866, AFL-CIO, the exclusive representative, by confiscating the filing cabinet and confidential files of the Union. (c) 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) Restore the past practice whereby Union officials are permitted to meet for representative purposes prior to 11:30 a.m. (b) Post at the facilities of the Military Entrance Processing Station, Los Angeles, California copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shatl be signed by the Commander 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 staps shall be taken to ensure that the Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VIII, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. Further, the remaining allegation of the consolidated complaint in Case No. 8-CA-50566 is dismissed. Issued, Washington, D.C., February 13, 1987 Jerry L. Calhoun, Chairman Henry B. Frazier III, Member Jean McKee, 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 fail or refuse to negotiate with American Federation of Government Employees, Local 2866, AFL-CIO, the exclusive representative of our employees, by unilaterally changing the past practice whereby Union officials are allowed to meet for representational purposes prior to 11:30 a.m. WE WILL NOT fail or refuse to negotiate with American Federation of Government Employees, Local 2866, AFL-CIO, the exclusive representative of our employees, by confiscating the filing cabinet and confidential files of the Union. 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 restore the past practice whereby Union officials are permitted to meet for representational purposes prior to 11:30 a.m. Military Entrance Processing Station, Los Angeles, California Dated: . . . By: . . .Commander 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, CA 90071, and whose telephone number is: (213) 894-3805. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case NoS.: 8-CA-50566 and 8-CA-60005 MILITARY ENTRANCE PROCESSING STATION, LOS ANGELES, CALIFORNIA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2805, AFL-CIO Charging Party John R. Pannozzo, Esquire. For General Counsel Lt. Colonel Wade B. Morrison, for Respondent Before: BURTON S. STERNBURG Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101, et seq. and the Rules and Regulations issued thereunder. Pursuant to charges filed on September 18, 1985 and October 4, 1985 in Case Nos. 8-CA-50566 and 8-CA-60005, respectively, by American Federation of Government Employees, AFL-CIO, Local 2866, (hereinafter called the Union or Local 2866), a Consolidated Complaint and Notice of Hearing was issued on December 30, 1985 by the Regional Director for Region VIII, Federal Labor Relations Authority, Los Angeles, California. The Consolidated Complaint alleges that the Military Entrance Processing Station, Los Angeles, California, (hereinafter called the Respondent or MEPS), violated Sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute, (hereinafter called the Statute), by unilaterally changing the working conditions of unit employees by virtue of its actions in (1) confiscating a file cabinet containing confidential union files and (2) altering the procedures governing both the time and manner in which non-employee Union representatives may enter the MEPS facility for purposes of meeting with unit employees. The above changes were allegedly implemented without giving prior notice to the Union and affording it the opportunity to negotiate over such changes in working conditions. A hearing was held in the captioned matter on February 26, 1986, in Los Angeles, California. All parties were afforded the opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The General Counsel and the Respondent submitted post-hearing briefs on April 9 and 10, 1985, respectively, which have been duly considered. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendations. Findings of Fact MEPS, which is responsible for processing applicants for the armed services, was formerly located in a multi-storied building on Wilshire Boulevard prior to May 1985 when it moved to its present location on Rodeo Road in Los Angeles, California. The Wilshire Boulevard location contained a security desk on the first floor, an operations section on the second floor, a medical section on the third floor and a testing area along with headquarters on the fourth floor. The present location of MEPS on the Rodeo Road is composed of two buildings with a connection corridor shaped in a letter B configuration. Although not clear it appears that the MEPS operation is conducted on the first floors of the connecting buildings and egress is solely through a corridor connecting both buildings. According to the record the applicants for military service processed by MEPS fall into two groups. One group are those applicants who have already been accepted and are reporting for medical processing prior to being shipped later in the day to a military installation. Although not entirely clear from the record, the second group appears to be first time applicants for enlistment who are undergoing medical examinations. /1/ Both groups arrive at about 5:00 a.m. The shippers, who are preparing for basic training, are given a quick physical and then meet with their counselors prior to disembarking by plane between the hours of 11:00 a.m. and 2:00 p.m. for basic training. The dep ins following their medical examinations are sent to the operations section for further processing. Local 2866 is the recognized exclusive representative of the Civilian employees at MEPS. The president of Local 2866 for the past nine years has been Mr. Gil Sanchez. In his capacity as president of Local 2866 he has represented unit employees in such matters as grievances under the negotiated grievance procedure, ULP's, employee complaints and employment discrimination. The shop steward is Ms. Mae Lapadula, who has been employed in the medical section of MEPS for approximately ten years. Her immediate supervisor is Mr. Lee Sturgis. According to Ms. Lapadula, who assumed her position as shop steward in August 1983, when changes in conditions of employment were made at MEPS notification of such changes were given to both her and Local 2866. Lt. Colonel Karen Rankin has been the Commander at MEPS since August 1984. Her adjunct is Captain Reynolds. Lt. J. G. Glover is the medical administrative officer and Mr. Charles Stafford is the supervisor of operations. The MEPS labor relations are handled, pursuant to a servicing agreement, by the Los Angeles Air Force Station. Mr. Kenneth Oprisko is the Chief of Employee and Labor Management Relations at the Los Angeles Air Force Station and Ms. Kristen Ogley is a Labor Relations Specialist at the same installation. Case No. 8-CA-60005, Alleged Illegal Confiscation of File Cabinet and Files. In September 1983, shortly after assuming the position of Union Steward, Ms. Lapadula spoke to the former Supervisor of Operations, Mr. Henry Patrick, and informed him that her personal locker was not large enough to store her union files. Whereupon, Mr. Patrick obtained a five drawer file cabinet from the storage room for use by Local 2866. The file cabinet was kept in various locations throughout the MEPS facility. Upon the move from the Wilshire Boulevard location to the Rodeo Road location the file cabinet was placed in the ladies lounge which is located across from the medical department. The file cabinet which contained, among other things, ULP charges, personal data, grievances, reprimands and various other materials associated with labor-management relations, remained in the ladies lounge until on or about October 3, 1985 when it was confiscated and/or appropriated by MEPS representatives. According to Lt. Col. Rankin, in late August or early September 1985, MEPS was ordered to conduct AIDS testing of all applicants for enlistment in the armed services. The results of such AIDS tests were to be contained in a "secured" file. Following a search of its existing filing facilities it was determined that the five drawer file, being utilized by Ms. Lapadula in her capacity as Local 2866 Steward was the "most available" since it contained the least amount of documents, could be locked and its use would be less disruptive to the MEPS mission. Thereafter, Sgt. Bratcher, Ms. Lapadula's second line supervisor, approached Ms. Lapadula and inquired if she could get along with a four drawer file because MEPS was in need of a file similar to the five drawer file being utilized by Local 2866. Being under the impression that the switch of files was only a temporary situation, Ms. Lapadula indicated her assent to the switch. At approximately the end of September, Ms. Lapadula was called into Lt. Col. Rankin's office and told of MEPS' intention to switch the Union's five drawer file for a smaller file. When Ms. Lapadula replied that she was ready at any time, Lt. Col. Rankin informed her that the switch would take place within the hour. Subsequently, when Ms. Lapadula met with Sgt. Bratcher to switch her Union memoranda from the five drawer file cabinet she was presented with four separate field lockers rather than a file cabinet with four drawers. The field lockers resembled a foot locker and each possessed a separate key. Further, according to Ms. Lapadula, the field lockers were rusty and dirty. Ms. Lapadula informed Sgt. Bratcher that she could not make the switch because it would be too hard on her to open each lock separately every time she needed a paper. According to Ms. Lapadula, whom I credit, she was under the impression that she was getting a four drawer file cabinet. On October 1, 1985, Ms. Lapadula met twice with Lt. Clover concerning the Union's file cabinet. Upon being told during the first meeting by Ms. Lapadula that there would be no switch until she received a suitable four drawer file cabinet, Lt. Glover replied that he intended to have the five drawer file and to get the key to the file even if he was forced to break into the file. At the second meeting that afternoon, Lt. Glover reiterated his intention of breaking into the file. Ms. Lapadula replied that she had no intention of surrendering the file cabinet until she had a suitable replacement. On October 2, 1985, Ms. Lapadula met with Captain Reynolds who reiterated the position of Lt. Glover. Ms. Lapadula stuck to her position and informed Captain Reynolds that if he intended to forcefully open her file cabinet he should do it in her presence. Upon hearing of the position taken by Ms. Lapadula, namely, that she was unhappy with the appearance of the field lockers and the fact that they had to be unstacked and placed on the floor to be opened, Lt. Col. Rankin, without any further discussion with Ms. Lapadula, ordered her subordinates to effectuate the switch. On October 2, 1985, between 2:45 p.m. and 3:00 p.m. after Ms. Lapadula's departure from work, Respondent's representatives removed the Union's files from the filing cabinet and transferred them to the four field lockers which were stored under lock and key in the supply room. Upon arrival at work on October 3, 1985, Ms. Lapadula discovered that her file cabinet had been removed and immediately proceeded to Lt. Glover's office where she was informed of the switch and Respondent's willingness to give her the keys to the field lockers if she relinquished the key to the file cabinet. At this time Ms. Lapadula was unaware of where her union files were located. Moreover, she was also unaware that Respondent had a duplicate key to her files. Thereafter, Ms. Lapadula held a number of telephone conversations with Union President Sanchez who ultimately instructed her to give the key to the file cabinet to Respondent representatives with the understanding that they would surrender the keys to the field lockers. Ms. Lapadula relinquished her key to the file cabinet but Lt. Glover refused to give her the keys to the field lockers. Lt. Glover informed Ms. Lapadula that Mr. Sanchez would have to come in a personally get the keys. Later that day Mr. Sanchez made arrangements with Lt. Col. Rankin to pick up the keys to the field lockers at 11:00 a.m. on October 4, 1985. However, when Mr. Sanchez did not arrive at MEPS until approximately 12:30 p.m. Respondent refused to make the keys available since the specific people she wanted to witnesses the exchange of the files were not present. On October 8, 1985, Mr. Sanchez drafted a letter to Lt. Col. Rankin wherein he requested the keys be turned over to Ms. Lapadula and informed Lt. Col. Rankin that once she had the keys he would schedule a visit to the MEPS facility for purposes of taking inventory of the Union's files. On October 11, 1985 Lt. Col. Rankin called Ms. Lapadula into her office, apologized for the way the file cabinet switch had been handled and gave her the keys to the field lockers. At approximately the same time Lt. Col. Rankin directed her staff to secure another filing cabinet for the Union. According to Ms. Lapadula and Mr. Sanchez they finally got access to the locked storage room and their files on October 17, 1985. The files were then transferred to a five drawer file cabinet supplied by MEPS and the file cabinet was moved back to its original location in the ladies lounge where, as in the past, they had unrestricted access to the union files. /2/ The record reveals that the implementation of the AIDS program did not commence until October 15, 1985 at the earliest. Case No. 8-CA-50566 Alleged Unilateral Change Concerning The Manner In Which Non-employee Representatives Achieve Access To MEPS and The Time When Such Access Will Be Allowed. According to the uncontested testimony of Mr. Sanchez, the non-employee President of the Union, for the past nine years he had been visiting the MEPS facility on the average of three times a month. Many of the visits were for purposes of meeting with a unit employee in his specific work area. The visits were always approved in advance in accordance with Article VI, Section 2(b) of the collective bargaining contract in effect between the Union and MEPS. Upon being contacted by the employee, Mr. Sanchez would schedule an appointment with the employee subject to the employee securing approval of the time and place from his or her immediate supervisor. Upon subsequently being informed by the employee that he had secured permission for the meeting from the immediate supervisor to confirm that he, the supervisor, had approved the time and place of the meeting, etc., at the MEPS facility. At no time, prior to the events herein, did Mr. Sanchez check with any other management official prior to entering the MEPS facility. On January 15, 1985, Lt. Col. Rankin, Ms. Ogley, Mr. Sanchez and Mr. Shoats, an AFGE Local Representative, met at the MEPS facility for purposes of bargaining over the issue of wearing white uniforms in the medical section. During a break in the proceedings while the parties awaited the appearance of Union Steward Lapadula, Mr. Sanchez and Mr. Shoats took a walk around the facility. Upon their return Lt. Col. Rankin, who had been concerned about the presence of unauthorized people in the facility spoke to Mr. Sanchez and informed him that thereafter all permission for access to the MEPS facility would be through her, the Commander's office. /3/ Lt. Col. Rankin acknowledged that she knew that she was changing procedure when she informed Mr. Sanchez that access to the MEPS facility would only be through her office. Lt. Col. Rankin further acknowledges that she did not inform either security or her lower ranking supervisors of the change in the access procedure imposed upon Mr. Sanchez. Despite Lt. Col. Rankin's instructions, Mr. Sanchez during the period January 15 - July 23, 1985 continued to shchedule meetings with the unit employees through their respective immediate supervisors. Thus, according to Mr. Sanchez' appointment log, Mr. Sanchez met on the following dates with the immediate supervisors of various unit employees; February 1, 11, 19; March 4, 12, 15, 27, and 29; April 4, 9, 12, 19, and 25; May 15 and 20; June 7 and 18; July 9 /4/ and 23, 1985. On July 23, 1985, Mr. Sanchez arrived at 11:30 a.m. for a scheduled appointment with Acting Commanding Reynolds. Supervisor Charles Stafford noticed Mr. Sanchez, inquired if he had an approved appointment and, upon being informed that he did at 1:30 p.m., escorted Mr. Sanchez from the building. Thereafter by letter dated July 24, 1985, Ms. Ogley wrote a letter to Mr. Sanchez which read in pertinent part as follows: "There have been several instances of subject visits by you over the past several months. On each occasion you have been reminded by a management representative that you must schedule your visits to the LA MEPS in advance through the Commander so that appropriate arrangement for such visits can be made at a time and place convenient to all parties. I was present at such a discussion between LTC Rankin, LA MEPS Commander, you and Mr. Shoats, AFGE Local regional representative on 15 Jan 85, where the requirement to schedule your visits in advance through the Commander was very clearly stated to you. "On 23 July 85 at approximately 11:30 a.m. you again made an unscheduled visit to LA MEPS. The fact that you had a 1:30 p.m. appointment with the acting Commander, CPT Reynolds, does not change or waive the requirement placed on you to schedule all visits in advance through the Commander." By letter 2 August 1985, Mr. Sanchez replied to the Ms. Ogley letter. The Union took the position that it had been complying with the provisions of the collective bargaining contract /5/ and accused the Respondent of attempting to discourage the Union representative from visiting the premises in violation of the Statute. On September 10, 1985, Mr. Sanchez received a telephone call from Ms. Lapadula requesting a meeting. Time, date and place were tentatively discussed and Mr. Sanchez informed her that she should schedule a meeting for 10:00 a.m. on September 12, 1985, with her immediate supervisor, Mr. Lee Sturgis. Later that same day, Mr. Sanchez received another telephone call from Ms. Lapadula stating that Mr. Lee Sturgis had approved the 10:00 a.m. meeting for September 12, 1985. On September 11, 1985, Mr. Sanchez received a telephone call from Ms. Lapadula in which he was informed by Ms. Lapadula that Mr. Sturgis had cancelled the previously approved meeting. According to Ms. Lapadula, Mr. Sturgis had informed her that he no longer had the authority to grant Mr. Sanchez permission to come onto the facility, and that approval and arrangements for subsequent representational meetings would have to be made through Lt. Col. Rankin or her staff. Mr. Sanchez then called Mr. Sturgis to confirm the cancellation of the approved meeting. Mr. Sanchez was told that the Commander required all non-employee visitors to coordinate with the Command Section before they entered the installation. According to Mr. Sanchez, this incident represented the first time that he was not permitted to coordinate his access onto the MEPS facility through the employee's immediate supervisor. Mr. Sanchez called Mr. Ogley and took the position that Respondent had arbitrarily changed policies and procedures regarding representation. On September 12, 1985, Mr. Sanchez, under protest, called Captain Reynolds to rechedule the previously cancelled meeting. Captain Reynolds approved Mr. Sanchez' request for an 11:00 a.m. meeting on September 13, 1985. That same day, Lt. Glover informed Ms. Lapadula that the scheduled 11:00 a.m. meeting for the following day had been cancelled and rescheduled to 1:30 p.m. Ms. Lapadula requested that the meeting be changed to 12:30 p.m. and her request was granted. According to Ms. Lapadula, Lt. Glover or Sgt. Bratcher informed her that there had been a change in policy and no more morning meetings, which were scheduled prior to 11:30 a.m., would be approved. This morning restriction was imposed by Respondent because of applicant processing and such restriction has been adhered to by the Local. Mr. Sanchez then called Lt. Glover and discussed the change in policy. Lt. Glover stated that he would check into the matter and return Mr. Sanchez' phone call. Not hearing from Lt. Glover, Mr. Sanchez again called Lt. Glover at 2:25 p.m. and was then informed that, pursuant to orders from Lt. Col. Rankin, there would no longer be any morning meetings with Ms. Lapadula. In addition, Lt. Glover told Mr. Sanchez that Captain Reynolds did not recall making any arrangements relating to an 11:00 a.m. meeting for September 13, 1985. Prior to September 12, 1985, Ms. Lapadula's release was not dependent on work load considerations. However, in practice, arrangements to conduct union business were usually made around her work schedule, since Supervisor Sturgis had advance notice of her meetings and ample time was provided to secure a replacement whether at 10:00 a.m. or 11:00 a.m. Prior to September 12, 1985, Ms. Lapadula had never been denied official time and if she requested a meeting for a particular time, e.g., 10:00 a.m., she received it. Thus, prior to this time, it was always within Ms. Lapadula's discretion when she would meet with Mr. Sanchez. After September 12, 1985, and continuing to the present, Ms. Lapadula's and Mr. Sanchez' representational meeting time was governed by the restrictions imposed by Respondent. Ms. Lapadula has requested official time at 10:00 a.m. to conduct various representational duties, primarily with non-employee Union representative Sanchez since September 12, 1985. She has been denied such request and been informed that she cannot conduct official union business until 11:30 a.m. Discussion and Conclusions The General Counsel takes the position that the Respondent violated Sections 7116(a)(1) and (5) of the Statute by virture of its actions in (1) confiscating the Union's filing cabinet, (2) unilaterally changing the manner in which non-employee Union representatives achieved access to the MEPS facility and (3) unilaterally determining that all such meetings involving the union president or other union representatives should commence after 11:30 a.m. In conncection with the Respondent's action in confiscating the Union's filing cabinet, the General Counsel points out that while it was owned by Respondent the Union's authorized use of the cabinet had ripened into a condition of employment over which Respondent was obligated to bargain prior to depriving the Union of the use of the filing cabinet. According to the General Counsel, Ms. Lapadula's original agreement to surrender the five drawer file was predicated on the understanding that it would be replaced with a four drawer filing cabinet, not four separate field lockers. Thus, in the absence of any exigency, when Ms. Lapadula balked at switching her cabinet for the four field lockers, Respondent was under an obligation to bargain over the removal of the filing cabinet prior to unilaterally confiscating same. With respect to the change in the manner that President Sanchez gained access to MEPS facility, the General Counsel takes the position that change in procedure occurred in July 1985 when he received Ms. Ogley's letter. In support of his position the General Counsel relies on the fact that prior to such time Lt. Col. Rankin issued no instructions to her subordinate supervisors changing the past procedure whereby access to the MEPS facility was arranged through such subordinate supervisors and the fact that from January-July 1985, Mr. Sanchez followed past practice without incident. Finally the General Counsel takes the position that Respondent's action in making the Union schedule all meetings subsequent to 11:30 a.m. constituted a unilateral change in the past practice of allowing the union steward to schedule meetings at an earlier hour, provided that she received permission from her supervisor who was responsible for making sure that adequate female personnel were available to insure that female recruits, etc., could be appropriately processed. Finally the General Counsel takes the position that the three changes concerned conditions of employment, the substance of which, the Respondent was obligated to bargain over prior to instituting changes therein. Having unilaterally changed such conditions of employment without bargaining, it is the General Counsel position that the Respondent violated Sections 7116(a)(1) and (5) of the Statute. The Respondent on the other hand takes the position that inasmuch as the change in the manner in which President Sanchez achieved access to the MEPS facility occurred in January 1985, more than six months prior to the filing of the charge based thereon, Section 7118(4)(A) mandates that the instant complaint should be dismissed as being untimely. Additionally, the Respondent takes the position that the mere change in the management representative empowered to approve access to the MEPS facility does not amount to a change in a condition of employment. In support of this position Respondent points out that neither party can dictate the others representative, and accordingly a mere change in representative is not a unilateral change within the meaning of the Statute which requires prior notice and bargaining. With respect to the confiscation of the Union's files, Respondent takes the position that the Union had acquiesced in the exchange and, in any event, inasmuch as the dispute concerns what the parties had agreed to, the matter should be resolved through the contract grievance procedure. Additionally, the Respondent takes the position that the impact was minimal and, since the matter was resolved after a short period of time by giving the Union another five drawer filing cabinet, it would not effect the policies of the Statute to give a remedial order. Finally, with respect to the hours wherein meetings could be scheduled, Respondent denies that it instituted any change. According to Respondent, each request for a meeting at a scheduled time is considered on a case by case basis and there is no hard and fast rule governing when meetings will be held. Moreover, and in any event, inasmuch as Ms. Lapadula is not busy during the period 11:30 a.m. to 2:30 p.m. any impact upon the Union is minimal. With respect to Case No. 8-CA-60005 involving the removal of the Agency owned five drawer filing cabinet, I find, that under all the circumstances present herein, Respondent's action in confiscating the filing cabinet violated Sections 7116(a)(1) and (5) of the Statute. Thus, the record reveals that the Union had used the filing cabinet, with the knowledge and blessing of the Respondent, for some two years prior to its removal. In such circumstances, I find that Union's use of the five drawer filing cabinet had ripened into a condition of employment which could not be changed by Respondent without prior notice to the Union and bargaining thereon. U.S. Department of the Treasury, Internal Revenue Service, New Orleans District, A/SLMR No. 1034; Arkansas Army National Guard, 1 FLRA No. 877. Although not specifically stated, Respondent's counsel does not appear to take issue with the above conclusion. Rather, he takes the position that the retrieval was based upon Ms. Lapadula's consent and, in any event, in view of the "de minimis impact" upon the Union and "timely rectification" no remedial order is warranted. While it is true that Respondent's representatives did talk to Mas. Lapadula and secure her consent to switch and/or remove her five drawer filing cabinet, the record reveals that such consent was predicated upon her understanding that she would receive a four drawer filing cabinet in return. Thus, to the extent, that Respondent's representatives testified that they merely told Ms. Lapadula she would receive four drawer filing capacity, I find such statement was a deliberate attempt to deceive Ms. Lapadula into believing that she would be receiving a conventional four drawer filing cabinet rather than four separate field storage files. /6/ Having mislead Ms. Lapadula, I find that Respondent failed to bargain in good faith with her prior to achieving her consent, and that its subsequent activity in unilaterally confiscating her filing cabinet without further bargaining, after she became aware that she was to receive four field storage lockers and voiced her objection thereto, amounted to a unilateral change in a condition of employment in violation of Sections 7116(a)(1) and (5) of the Statute. Inasmuch as the use of the filing cabinet is a condition of employment not falling within the purview of Section 7106(a) of the Statute, Respondent was obligated to bargain over the decision to remove the filing cabinet, not merely the manner of implementation and impact on the employees. Accordingly, the degree of impact, is not a matter to be considered. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 19 FLRA No. 123. With respect to Respondent's final argument against a remedial order which is based upon the fact that some eight days later Respondent obtained a five drawer filing cabinet for the Union's use, I find, under all the circumstances that a posting is in order. Thus, the record shows, and I find, that Respondent deliberately mislead Ms. Lapadula in the first instance, there was no exigency to justify the confiscation, and the confiscation prevented the Union from utilizing its files. Having played fast loose with the Union's files the Respondent demeaned the Union in front of its constituency and committed a blatant violation of the Statute. Accordingly, contrary to Respondent's contention, I find that a cease and desist order as well as a posting is warranted. With respect to Case No. 8-CA-50566 wherein it is alleged that Respondent unilaterally change the manner in which Union President Sanchez achieved access to the MEPS facility, as well as the time he or Ms. Lapadula could hold meetings with employees, I find that the record evidence supports the conclusion that Respondent did unilaterally change such conditions of employment. With respect to the change in the manner in which Mr. Sanchez achieved access to the MEPS facility, the record evidence establishes and I find that for many years Mr. Sanchez, as Union President, had followed the practice of arranging access to the MEPS facility, for purposes of meeting with employees and their respective supervisors, through the Respondent's supervisors. This practice continued without incident until January 15, 1985, when Lt. Col. Rankin, who had been concerned about the presence of unauthorized people in the facility, informed Mr. Sanchez that thereafter all permission for access to the MEPS facility would be through her, Lt. Colonel Rankin, office. /7/ Despite the above instructions from Lt. Colonel Rankin, who acknowledged that such instructions changed past practice, Mr. Sanchez continued to make appointments to visit the MEPS facility through the employee's various supervisors, who evidently had not been informed of the change in past practice. Mr. Sanchez's continued activities in the above respect did not come to the attention of Lt. Colonel Rankin until early June, 1985, when she noticed the presence of Mr. Sanchez at the Rodeo MEPS facility. Upon discovering that he had not scheduled an appointment through her office, she escorted Mr. Sanchez from the facility. On July 23, 1985, Mr. Sanchez arrived several hours early for a scheduled appointment and again was escorted from the facility. This latter incident prompted a letter dated July 24, 1985 from Ms. Ogley who reiterated the January 15, 1985 instruction from Lt. Colonel Rankin to the effect that all requests for access to the facility should be made through her, Lt. Colonel Rankin's immediate office. It is well established that parties may establish terms and conditions of employment by past practice. Once established, a term and condition of employment may not be unilaterally altered by either party. A change in the mode of access to an agency's facility, without bargaining with Union, has been found by the Authority to be a violation of Section 7116(a)(1) and (5) of the Statute. Department of Defense, Army and Air Force Exchange Service, Fort Eustis Exchange, Fort Eustis, Virginia, 20 FIRA No. 32. Inasmuch as I find Department of Defense, Army and Air Force Exchange, Fort Eustis Exchange, to be right on point I normally would find a Section 7116(a)(1) and (5) violation. However, I further find that inasmuch as the change in the manner of achieving access to the MEPS facility by President Sanchez occurred on January 15, 1985, more than six months before the charging party filed its charge on September 18, 1985, Section 7118(4)(A) of the Statute mandates dismissal. Contrary to the contention of the General Counsel I can not conclude that since the instructions had not been conveyed to the subordinate supervisors and that Mr. Sanchez had continued to follow the past procedure with regard to achieving access through the subordinate supervisors, the change in procedure actually took place on or occurred July, 1985. Thus, I note that since Mr. Sanchez appears to be the only non-employee union representative seeking access to the facility there was no reason to believe that he would not follow the change in procedure, hence no need to relay the change to subordinate supervisors. Also, there was no showing that Lt. Colonel Rankin was aware of the fact that Mr. Sanchez had been ignoring his instructions and was still requesting access through subordinate supervisors. Thus, the record indicates that when it became apparent that Mr. Sanchez was ignoring the instructions, management then relayed the change in procedure to its subordinate supervisors as evidenced by the testimony of Ms. Lapadula that she had been informed by Mr. Sturgis that he no longer had authority to grant access to Mr. Sanchez. In view of the foregoing I shall recommend that this aspect of the complaint be dismissed. Turning now to the remaining issue of the complaint concerning the alleged change in the time when union meetings may be held, I credit the testimony of Ms. Lapadula and President Sanchez that they were informed on or about September 12, 1985, that thereafter all union meetings would have to be scheduled after 11:30 a.m. I further find based on the record evidence and the testimony of Ms. Lapadula that prior to September 12, 1985, there had never been any hard and fast rule with respect to the time union meetings would be scheduled. Thus, according to the credited testimony of Ms. Lapadula, union meetings were usually held at any time Ms. Lapadula desired, subject only to obtaining permission from her supervisor. Inasmuch as this change in the time for scheduling union meetings was made unilaterally by Respondent without affording the Union any prior notice or the opportunity to bargain over the substance of the change, I find that Respondent violated Sections 7116(a)(1) and (5) of the Statute. Cf. Department of Health and Human Services, Social Security Administration, supra. To the extent that Respondent argues that there was little or no impact since Ms. Lapadula had at least three free hours after 11:30 a.m., I find such argument to be without merit. As noted above, the degree of impact is not to be considered when the Respondent is under an obligation to bargain the substance of the change as opposed to the manner of implementation and impact. Having concluded that the Respondent violated Sections 7116(a)(1) and (5) of the Statute by unilaterally changing the time when Union meetings could be held and by removing the five drawer filing cabinet utilized by the Union without prior notice and affording the Union the opportunity to bargain over the substance of the changes, I recommend that the Federal Labor Relations Authority issue the following order designed to effectuate the purposes and policies of the Statute. It is further recommended that the allegation concerning the change in the mode of access by non-employee union representatives to the MEPS facility be dismissed. ORDER Pursuant to Section 7118(a)(7)(A) of the Federal Service Labor-Management Relations Statute, 5 USC Section 7118(a)(7)(A), and Section 2423.29(b)(1) of the Rules and Regulations of the Federal Labor Relations Authority, the Station, Los Angeles, California shall: 1. Cease and desist from: (a) Failing or refusing to bargain in good faith with the American Federation of Government Employees, Local 2866, AFL-CIO, the exclusive bargaining representative, by changing the past practice whereby non-employee officials are allowed to meet with the Union shop steward, an employee, for representational purposes, prior to 11:30 a.m. (b) Failing or refusing to bargain in good faith with the American Federation of Government Employees, Local 2866, AFL-CIO the exclusive bargaining representative, by confiscating the filing cabinet and confidential files of the Union. (c) In any like or related manner interfering with, restraining, or coercing our employees in the exercise of their rights guaranteed by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Statute: (a) Restore the past practice whereby non-employee officials of the Union are permitted to meet with the Union shop steward for representative purposes prior to 11:30 a.m. (b) Post at its Military Entrance Processing Station 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 Commander of the Respondent and shall be posted and maintained for sixty (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 ensure that such notices are not altered, defaced, or covered by any other material. (c) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region 8, 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. BURTON S. STERNBURG Administrative Law Judge Dated: July 9, 1986 Washington, D.C. --------------- FOOTNOTES$ --------------- (*) Based on our reasoning set forth above, we will no longer follow the approach in American Federation of Government Employees, AFL-CIO, Council of Locals No. 214 and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 19 FLRA No. 23 (1985), rev'd, AFGE, Council of Locals No. 214, and in similar cases. (1) The first group of applicants are called "shippers" and the second group of applicants are called "dep ins". (2) There is a dispute as to the date of the transfer. Thus, while Ms. Lapadula puts the date as October 11, 1985, Lt. Col. Rankin recalls the date as being approximately 3 days after her October 8th conversation with M. Lapadula, making it October 11, 1985. In any event the Union was without access to its files for at least eight days. (3) Mr. Sanchez acknowledges having a conversation with Lt. Col. Rankin wherein she informed him that thereafter all requests for access to the MEPS facility would be made through her office. However, he interpreted her instructions to be applicable to only those requests dealing with meetings on the Commander's level. According to Mr. Sanchez whenever his business on the MEP's facility involved supervisors, etc., below the Command Level, he would continue his past practice of gaining access to the facility through such supervisors. Ms. Ogley supports the testimony of Lt. Col. Rankin to the effect that there was no discussion of any alternative manner in which Mr. Sanchez could gain access to the facility. Further, according to Mr. Oprisko, who met separately the next day with Mr. Sanchez, he repeated Lt. Col. RankinS order to Mr. Sanchez, that permission for access to the MEPS facility would be solely through the Commander's office. I credit Lt. Col. Rankin's testimony that on January 15, 1985 she instructed and/or informed Mr. Sanchez that all visits to the MEPS facility would have to be approved by her office. I further credit her testimony that Mr. Sanchez gave her no argument and appeared to accept the change in procedure. Mr. Sanchez might well have misinterpreted such instruction and believed that they only applied to meetings with Lt. Col. Rankin's staff, hence no objection from him. (4) Lt. Col. Rankin testified that in early June she observed Mr. Sanchez in the Rodeo MEPS facility and since he had not scheduled an appointment through her office she, Lt. Col. Rankin, escorted him from the building. (5) ARTICLE VI entitled UNION REPRESENTATIVES provides in pertinent part as follows: Section 2. When it is necessary for the steward to leave his work station during working hours in the performance of his steward's duties, he will be granted reasonable time to leave the work area. The Union agrees that time granted in accordance with the above will not be used for any matters connected with the internal management and or operations of the Union and other prohibited activities as specifically provided in the applicable regulations, including those set forth in Federal Personnel Manual Book. It is further agreed that appropriate business matters of the Union concerning management or employee relations shall be scheduled in advance as far as is practicable in order to not interrupt planned work schedules. a. Union officers, representatives and stewards prior to leaving their assigned work site, shall obtain oral permission from the appropriate supervisor. The supervisor shall be advised by the steward as to the reason for leaving the area and the approximate duration of his absence. The steward shall return to his assigned work site and notify his supervisor. b. When a Union representative or steward desires to discuss a work related matter with an employee of a supervisor other than his own, upon entering the other supervisor's work area, he shall contact the supervisor and advise him of the reason for his presence and the employee he desires to contact. Contact between employee and Union representatives will normally take place in the immediate vicinity of the employee's assigned work area or in a space designated by the supervisor concerned. (6) In reaching this conclusion I credit Ms. Lapadula's testimony and, I find it hard to believe that Respondent's representatives would not have described what they intended to substitute for the Union's five drawer file unless they intended to deceive Ms. Lapadula. I think "four drawer filing capacity" would be understood by most people to be a four drawer filing cabinet, not four separate field storage files. (7) As noted supra, I have credited the testimony of Lt. Colonel Rankin with respect to the fact that the conversation did in fact occur and the substance of the conversation. 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 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 change existing conditions of employment of unit employees by confiscating the filing cabinet and confidential files of the American Federation of Government Employees, Local 2866, AFL-CIO, the exclusive representative of our employees, herein called the Union, without first notifying the Union and providing it with an opportunity to bargain concerning such changes. WE WILL NOT make unilateral changes in conditions of employment by changing the past practice whereby non-employee officials of the Union are allowed to meet with the Union shop steward, an employee, for representational purposes, prior to 11:30 a.m., without first notifying the Union and affording it the opportunity to bargain on said changes. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured under the Federal Service Labor-Management Relations Statute.