40:0342(33)AR - - NAGE Local R14-77 and VA Medical Center, Grand Junction, CO - - 1991 FLRAdec AR - - v40 p342

[ v40 p342 ]
The decision of the Authority follows:

40 FLRA No. 33




LOCAL R14-77









April 23, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator John F. Sass filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.

The grievance in this case was filed over the Agency's discontinuance of the practice of allowing its Dietetic Service employees duty time for personal clean-up and to change out of their uniforms at the end of their shifts. The Arbitrator denied the grievance, finding that the Agency's action did not violate the parties' master agreement and that no "binding past practice" had been established by the practice.

For the following reasons, we conclude that the Union has failed to establish that the Arbitrator's award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

On or about March 15, 1989, Dietetic Service employees were notified by management that, effective April 1, 1989, they would no longer be allowed any amount of duty time to change out of their uniforms at the end of their shifts. For at least several years prior to April 1, 1989, Dietetic Service employees at the Agency were allowed some amount of duty time at the end of their shift to wash up and to change out of their work uniforms and into their street clothes. A group grievance was filed on April 7, 1989, protesting the change that had occurred on April 1. The grievance was not resolved and the matter was referred to arbitration.

The parties stipulated before the Arbitrator to the following issue:

Did the Agency violate Article 26, Sections 1 and 6, of the Master Agreement and an established past practice by refusing to allow employees in Dietetics duty time for personal clean-up and uniform change? If so, what is the appropriate remedy?

Arbitrator's award at 1.

The Arbitrator noted that this case is based solely on Article 26, Sections 1 and 6, of the parties' master agreement and on past practice. In this regard, he found that Article 26, Section 1, of the master agreement provided that employees whose uniforms become "inordinately dirty or contaminated" because of their work assignment must be given paid duty time to change out of their uniforms. Id. at 3. He also found that Article 26, Section 6, of the master agreement provided that employees must also be allowed a reasonable amount of time to properly cleanse themselves before lunch and at the end of their shifts. Id. The Arbitrator concluded that the Union had failed to show a violation of either Section 1 or 6 of Article 26. In this regard, he found that employees with "inordinately dirty or contaminated uniforms" were allowed to change them and clean up on duty time, even after April 1, 1989, and that no one had ever denied an employee the right to use the sink in the work area to wash up on duty time before lunch or at the end of their shifts. Id.

The Arbitrator noted that the question of whether the Agency had violated a binding past practice was "a bit more difficult to answer." Id. at 4. He found that clearly there was at least some practice of giving employees some duty time to change from their uniforms at the end of their shifts prior to April 1, 1989, regardless of whether their uniforms were inordinately dirty or contaminated. The Arbitrator reasoned that in order for a practice to become binding on the parties, as any other part of the agreement, the parties who have accepted the practice must have the authority to make a binding agreement. The Arbitrator found that "[o]ne local supervisor and her employees clearly do not have authority to bind the Agency and the Union even at the local level, let alone nationally." Id. at 5.

The Arbitrator further found that "the past practice in Dietetic Service . . . was not in accordance with any official local policy[,]" and there was no "evidence to suggest that it was ever 'accepted' by Medical Center management and by the Local Union." Id. He found that the practice "was simply something that one department supervisor allowed to get started and then to continue in varying form for some period of time before finally being halted as an unnecessary waste of employee work time." Id. The Arbitrator concluded that "[s]uch a practice does not qualify as a binding past practice and can be changed at any time to bring operations into compliance with the requirements of the Master Agreement and/or with practice that has been 'accepted' and 'approved' on a much larger scale by authorized representatives of the Agency and the Union." Id.

Accordingly, the Arbitrator denied the grievance, finding that "the Agency had every right to halt the practice and to bring its Dietetic Service operations into compliance with the [master agreement]. . . ." Id.

III. Positions of the Parties

A. The Union

The Union does not except to the Arbitrator's finding that there was no violation of the parties' master agreement. However, the Union does except to the Arbitrator's conclusion that the practice at issue was not a binding past practice. The Union contends that the Arbitrator's award is contrary to well-established arbitral law that determines when a past practice is binding upon the parties. It argues that the Arbitrator erred as a matter of law in failing to recognize the binding effect of the past practice and in failing to recognize that the parties' past practice "rose to the level of a separate enforceable condition of employment." Union's Exceptions at 1.

The Union argues that there are several elements that must be met before an enforceable past practice can be said to exist: (1) the alleged past practice must be longstanding; (2) the practice must be clear and unequivocal; and (3) the practice must be widespread and known to both parties. It contends that all these factors were present with regard to the practice at issue. The Union asserts that the Arbitrator's statement of law that the practice was not binding because the local supervisor lacked authority to bind the Agency and Union is incorrect. It argues that where an agency has knowledge of a particular practice and acquiesces to its continuing practice, it is binding upon the parties as a condition of employment. In support, the Union cites to the Authority's decision in Social Security Administration, Mid-America Service Center, Kansas City, Missouri, 9 FLRA 229 (1982) (SSA). The Union further contends that all of the Arbitrator's findings concerning the practice support the conclusion that the Agency accepted and was bound by the practice. In this regard, the practice had been in effect for several years and had been known and accepted by the Chief of the Dietetic Service. Further, it argues, there was no evidence to indicate that higher management had sought to limit or curtail the practice.

The Union also contends that the Arbitrator's award is contrary to section 7116(a)(5) of the Statute by allowing the Agency to unilaterally change a past practice without negotiations. The Union asserts that the Agency failed to give it notice and an opportunity to bargain prior to ending the past practice. The Union seeks a reinstatement of the former past practice until such time as the Agency gives notice and completes negotiations over any change.

B. The Agency

The Agency contends that the Arbitrator properly applied existing law concerning past practice. The Agency argues that in order to constitute a past practice, the practice must be consistently exercised over an extended period and followed by the parties. Further, it argues that deviations by some supervisors in distinct parts of an activity do not establish a past practice in the absence of acquiescence of higher management. In support, the Agency cites to Authority decisions in SSA and Department of Health and Human Services, Social Security Administration, 17 FLRA 126 (1985). Also, the Agency argues that local deviations from a national level policy do not establish a past practice at the local level where there is no requirement for local bargaining and the national level management has not acquiesced in the practice. Thus, the Agency contends that the Arbitrator correctly found that management's determination to adhere to the requirements of the master agreement was not a change in past practice.

The Agency further argues that the Union's disagreement with the Arbitrator is essentially a disagreement with his factual findings and reasoning that the parties did not agree to and approve a binding past practice. Accordingly, the Agency contends that the Authority should reject the Union's attempt to relitigate the case.

Finally, the Agency objects to the Union's attempt to transform this case into an unfair labor practice case and have the Authority grant a status quo ante remedy. It argues that the Union may not at this point attempt to obtain an Authority unfair labor practice remedy. If the Authority were to overrule the Arbitrator's finding on past practice, any further remedy, it contends, must be obtained from the Arbitrator.

IV. Analysis and Conclusions

We conclude that the Union's exceptions do not establish that the Arbitrator's award is deficient on any of the gro