47:1131(106)CA - - Defense Distribution Region West, Lathrop, CA and AFGE, Local 1546 - - 1993 FLRAdec CA - - v47 p1131

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[ v47 p1131 ]
47:1131(106)CA
The decision of the Authority follows:


47 FLRA No. 106

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEFENSE DISTRIBUTION

REGION WEST

LATHROP, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1546, AFL-CIO

(Charging Party/Union)

9-CA-10523

_____

DECISION AND ORDER

July 13, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the exceptions.

The amended complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally changing conditions of employment of bargaining unit employees when it prohibited the playing of radios and the use of headsets at the Sharpe Army Depot during the pendency of a question concerning representation (QCR); violated section 7116(a)(1) and (8) of the Statute by holding a formal discussion without notifying the Union; and violated section 7116(a)(1) of the Statute by responding to employee "Hotline" complaints in a manner suggesting that the Union had agreed to the prohibition of radio playing.

The Judge concluded that the Respondent violated the Statute as alleged. The Respondent excepted to the Judge's finding of a violation based on a change in a condition of employment. No exceptions were filed to the Judge's findings that the Respondent violated section 7116(a)(1) and (8) of the Statute by holding a formal discussion without notifying the Union and that the Respondent violated section 7116(a)(1) by responding to employee complaints in a manner suggesting that the Union had agreed to the prohibition of radio playing.

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 and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision, the exceptions and opposition, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order, as modified below.(1)

The Judge found that prior to July 1991 the Respondent permitted the employees at the Sharpe facility to play radios and use headsets, with only one limitation not relevant to this case. The Judge further found that the Respondent notified the Union in late March 1991 of the intention to change this practice. The practice was terminated in July 1991. The Judge found that supervisors and management officials were aware of the practice, and noted the testimony of one official admitting that the Respondent had "changed a past practice" in prohibiting radio playing. Judge's Decision at 3. Previously, in early March 1991, the Respondent filed a representation petition with the Authority's Regional Director following a consolidation of the Respondent's functions that included the Sharpe facility. The Regional Director determined that the existing bargaining units of the Respondent's employees were no longer appropriate and directed that an election be held. At the time of the unfair labor practice hearing, no election had been conducted.

In addressing the change regarding the use of radios and headsets, the Judge found that the Respondent did not challenge the General Counsel's assertion that the playing of radios was a "working condition" and that "there was an established past practice of radio playing" at the Sharpe facility. Id. at 9. Consequently, applying the standard set forth in United States Department of Justice, United States Immigration and Naturalization Service, 9 FLRA 253 (1982) (INS), rev'd on other grounds sub nom. United States Department of Justice v. FLRA, 727 F.2d 481 (5th Cir. 1984), the Judge found that because the use of radios and headsets was an established condition of employment, the Respondent was obligated to maintain that condition of employment during the pendency of the QCR, to the extent consistent with the necessary functioning of the agency.

In this latter connection, the Judge addressed and rejected each of the Respondent's asserted bases for the change--namely, that the elimination of the playing of radios and the use of headsets was related to safety and productivity and that it constituted an attempt to establish a consistent policy throughout the Respondent's facilities. The Judge found that the change was not necessary and, therefore, that the Respondent violated section 7116(a)(1) and (5) of the Statute by terminating the practice. In reaching this result, the Judge rejected the Respondent's contention that its conduct involved a matter of contract interpretation, rather than an unfair labor practice, because the parties' collective bargaining agreement addressed the use of radios.(2) The Judge found that an unfair labor practice proceeding was the appropriate forum in which to resolve this allegation of the complaint.

In finding that the Respondent violated the Statute by changing a past practice, the Judge examined the parties' agreement and appears to have concluded, without expressly so stating, that the parties had, in practice, modified Article V, Section 11 of their agreement. In this regard, we note that the Judge found that in practice there was only one limitation on the employees' right to play radios, whereas the language of Article V, Section 11 permits the Respondent to restrict the use of radios based on general considerations of productivity and safety. The Judge also found that supervisors and management officials were aware that the employees regularly played radios and used headsets. Such a finding is relevant to a conclusion that there was a change in an established past practice. See U.S. Department of the Navy, Naval Avionics Center, Indianapolis, Indiana, 36 FLRA 567, 570-72 (1990) (notwithstanding the differing language of the agreement, Authority found a consistent practice that had existed with the knowledge and participation of management). In addition, the Judge referred to testimony of a management official conceding that the Respondent had changed a past practice.

We agree with the Judge that the Respondent violated section 7116(a)(1) and (5) of the Statute by changing conditions of employment during the pendency of a QCR. See INS. See also Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, Laredo, Texas, 23 FLRA 90 (1986).(3) We reach this result based on two reasons: 1) the Judge's implicit finding that the parties had, by past practice, modified the portion of their agreement addressing the playing of radios at the worksite; and 2) the Judge's explicit finding that the change in conditions of employment was not necessary for the functioning of the Agency.

In its exceptions, the Respondent contends that this case involves a matter of contract interpretation and that the Judge erred in failing to find that the dispute over the Respondent's prohibition of the playing of radios during the pendency of the QCR should have been resolved in the grievance/arbitration forum. Conceding that management is obligated to maintain conditions of employment during a QCR, the Respondent maintains that Article V, Section 11 of the parties' agreement arguably privileged its action and that under Authority precedent, matters of contract interpretation should be resolved through the grievance/arbitration process.

We reject the Respondent's contention. In Internal Revenue Service, Washington, D.C., 47 FLRA No. 103 (1993) we reexamined the Authority's approach to resolving a case in which an agency argues that it was privileged to take certain action based on provisions of a collective bargaining agreement. We rejected various approaches that would require that such issues be determined only through arbitration, and, instead held that the Authority could, and in the future would, determine the meaning of the parties' collective bargaining agreement when necessary to the determination of an unfair labor practice case before the Authority. As we stated above, the Judge examined the parties' agreement in light of the prevailing practice regarding the playing of radios and the use of headsets and essentially determined that the parties had, by such practice, modified their agreement. Even if there were no such modification, however, we conclude that the Judge's findings support a determination that Article V, Section 11 did not privilege the Respondent's action. That provision permits the playing of radios and headsets on the worksite if that use does not disturb the productivity or safety of employees or others. The Judge closely examined both of the limitations contained in the provision and determined that neither safety nor productivity had been compromised by radio playing. Based on those findings, we conclude that the Respondent had no contractual basis on which to ban radios and headsets.

The Respondent also excepts to the Judge's finding that the change in the policy of permitting the playing of radios and the use of headsets was not necessary for the functioning of the agency. The Respondent argues that the Judge failed to consider certain facts in reaching his determination. Among these facts are the increased noise level in the warehouses due to modernization of industrial areas; the need for employees to be more cognizant of audible warning devices on equipment; and studies demonstrating that noise levels were approaching the levels determined detrimental by the Occupational Safety and Health Administration (OSHA).

We find no merit to the Respondent's exception because the Judge addressed each of the concerns raised by the Respondent. For example, the Judge evaluated the Respondent's claim concerning the increased automation and mechanization at the Sharpe facility and found that, although the safety concerns were legitimate, no change was necessary for the functioning of the Respondent. Likewise, the Judge addressed the asserted interference with audible warning signals and the noise levels exceeding OSHA standards. The Judge found that both documentary and testimonial evidence did not support the Respondent's contentions. Finally, the Judge rejected the Respondent's arguments that the ban on radios and headsets was consistent with the necessary functioning of the Agency either because of productivity considerations or the need for a consistent policy among the Respondent's facilities. In sum, the Judge addressed each of the Respondent's concerns and the Respondent has not persuaded us that the Judge erred in concluding that the change was not necessary to the functioning of the Respondent.

Accordingly, we agree with the Judge's findings and conclusions that the Respondent was obligated to maintain existing conditions of employment during the pendency of the QCR and that its failure to do so violated section 7116(a)(1) and (5) of the Statute.

II. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Defense Distribution Region West, Lathrop, California, shall:

1. Cease and desist from:

(a) Changing conditions of employment of bargaining unit employees represented by the American Federation of Government Employees, Local 1546, AFL-CIO, by banning the playing of radios and the use of headsets in the Directorate of Distribution, San Joaquin Site, Sharpe, during the pendency of a question concerning representation before the Federal Labor Relations Authority.

(b) Interfering with, restraining, or coercing employees in the exercise of their rights under the Federal Service Labor-Management Relations Statute by making incorrect statements to employees that imply that the American Federation of Government Employees, Local 1546, AFL-CIO, agreed to change working conditions, such as the banning of radios.

(c) Conducting formal discussions with employees represented by the American Federation of Government Employees, Local 1546, AFL-CIO, concerning meetings held to announce and discuss the ban on the playing of radios and the use of headsets in the Directorate of Distribution, San Joaquin Site, Sharpe, without affording the Union prior notice of and the opportunity to be represented at the formal discussions.

(d) In any like or related manner interfering with, restraining or coercing its employees in the exercise of 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) Rescind the policy implemented on July 8, 1991, which banned the playing of radios and the use of headsets in the Directorate of Distribution, San Joaquin Site, Sharpe, and restore the prior practice.

(b) Rescind the July 25, 1991, and August 12, 1991, letters written to bargaining unit employees which implied that the American Federation of Government Employees, Local 1546, AFL-CIO, had agreed to the banning of radios in the Directorate of Distribution, San Joaquin Site, Sharpe.

(c) Post at its facilities at Directorate of Distribution, San Joaquin Site, Sharpe, 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 Directorate of Distribution 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.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT change conditions of employment of bargaining unit employees represented by the American Federation of Government Employees, Local 1546, AFL-CIO, by banning the playing of radios and the use of headsets in the Directorate of Distribution, San Joaquin Site, Sharpe, during the pendency of a question concerning representation before the Federal Labor Relations Authority.

WE WILL NOT interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute by making incorrect statements to employees that imply that the American Federation of Government Employees, Local 1546, AFL-CIO, agreed to change working conditions, such as the banning of radios.

WE WILL NOT conduct formal discussions with employees represented by the American Federation of Government Employees, Local 1546, AFL-CIO, concerning meetings held to announce and discuss the banning of playing radios in the Directorate of Distribution, San Joaquin Site, Sharpe, without affording the Union prior notice of and an opportunity to be represented at the formal discussions.

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

WE WILL rescind the policy implemented on July 8, 1991, which banned the playing of radios and the use of headsets in the Directorate of Distribution, San Joaquin Site, Sharpe, and restore the prior practice.

WE WILL rescind the July 25, 1991, and August 12, 1991, letters written to bargaining unit employees, which implied that the American Federation of Government Employees,

Local 1546, AFL-CIO, agreed to the banning of radios in the Directorate of Distribution, San Joaquin Site, Sharpe.

_____________________________
(Agency)

Dated:______________ By:________________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, California, 94103, and whose telephone number is: (415) 744-4000.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. As no exceptions were filed to the Judge's findings and conclusions that the Respondent violated section 7116(a)(1) and (8) and section 7116(a)(1), we adopt those portions of the Judge's decision without further discussion.

2. Article V, Section 11 of the parties' agreement states:

Use of Personal Audio Devices. Employees, with the approval of the supervisor, may play radios on the worksite so long as the use does not disturb the productivity or safety of employees or others. The Employer shall not be responsible for the security of personal property or loss thereof.

3. In an Order Denying Request for Major Policy Ruling, 46 FLRA 1335 (1992), the Authority was asked to issue a major policy ruling on the question of whether an agency is obligated to continue to cooperate with impasse proceedings if a QCR arises following the Federal Service Impas