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29 FLRA No. 54

DEPARTMENT OF THE TREASURY
U.S. CUSTOMS SERVICE
MIAMI, FLORIDA

                  Respondent

        and

NATIONAL TREASURY EMPLOYEES UNION

                   Charging Party

Case No. 4-CA-552
(19 FLRA 1123)

SUPPLEMENTAL DECISION AND ORDER

I. Statement of the Case

This case is before the Authority based on an order of the United States Court of Appeals for the District of Columbia Circuit granting the Authority's motion for remand. For the reasons stated below, and consistent with our decision in Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA No. 53 (1987), we conclude that the Respondent failed to comply with section 7114(a)(2)(A) of the Federal Service Labor - Management Relations Statute (the Statute) in violation of section 7116(a)(1) and (8) of the Statute. We therefore reverse the Authority's previous holding and find that the Respondent committed unfair labor practices when it failed to provide the Charging Party with an opportunity to be represented at a formal discussion.

II. Introduction

In Department of the Treasury, U.S. Customs Service, Miami, Florida, 19 FLRA 1123 (1985), the Authority found, based on Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 19 FLRA 1054 (1985) (VA Muskogee), that the presence of a union steward at a formal discussion was sufficient to demonstrate compliance with the requirement of section 7114(a)(2)(A) that an exclusive [PAGE] representative "be given the opportunity to be represented" at such a meeting. Accordingly, the Authority found that inasmuch as an employee who was also a Union steward had attended the formal meeting here involved, the Respondent did not violate section 7114(a)(2)(A) even though the Union did not receive notice of the meeting and did not have the opportunity to choose a representative to attend the meeting. The Authority also rejected other allegations of the complaint and dismissed the complaint in its entirety.

Subsequently, the Union petitioned the D.C. Circuit for review of the Authority's decision. Thereafter, the Authority filed a motion for remand of the case. The motion noted that pending before the Authority was Department of the Air Force, Sacramento Air Force Logistics Center, McClellan Air Force Base, California, Case No. 9-CA-60302, a case involving the legal issue present in the instant case and in VA Muskogee, and that the pendency of that case prompted reexamination of the Authority's holding in VA Muskogee. The Authority requested remand in order to reexamine the holding in 19 FLRA 1123 and issue a decision consistent with the decision in Department of the Air Force, Sacramento Air Force Logistics Center, McClellan Air Force Base, California. The court granted the motion for remand. The history of this case is set out more fully below.

III. History of the Case

A. Facts

The National Treasury Employees Union is the exclusive representative for certain non-supervisory employees of Region IV of the U.S. Customs Service. These employees include import specialists, who make certain that merchandise entering the country is admissible and that the proper duty for the merchandise is collected. Before April 1980, staff meetings for employees were usually held monthly. In an April 15, 1980 memorandum, the Director of the Classification and Value Division announced that a staff meeting would take place every second Wednesday of each month to discuss items affecting the work of the import specialists, new policies, and guidelines received from headquarters, among other things, and that all persons attending the meeting were encouraged to provide topics of discussion prior to the meeting. This memorandum was distributed to all import specialists, the Supervisory Mail Specialist, the Import Control Officer, and the Supervisory Import Specialist. [ v29 p2 ]

On July 9, 1980, in accordance with this schedule, a staff meeting was held and attended by twelve import specialists--including Sherri Hurt, an import specialist who was also a Union steward--and two supervisors. At the meeting, the supervisors discussed various work-related topics and made a number of announcements. The import specialists were also provided a forum to ask questions. The Respondent did not regard the meeting to be a "formal discussion" within the meaning of section 7114(a)(2)(A), and did not notify the Union of the meeting. The parties stipulated that Frank Carelli, the local Union president, would have been the proper person to contact about formal discussions. The Respondent also held a meeting in late July to discuss an issue raised in the July 9th meeting.

Upon the Union's filing of an unfair labor practice charge, the General Counsel issued a complaint alleging, among other things, that the Respondent failed to comply with section 7114(a)(2)(A) of the Statute by holding formal meetings on July 9th and in late July 1980 without notifying the Union and affording it an opportunity to be present and represented at the meeting in violation of section 7116(a)(1) and (8).

B. The Administrative Law Judge's Decision

The Administrative Law Judge concluded, among other things, that the July 9, 1980 staff meeting constituted a formal discussion within the meaning of the Statute. The Judge stated that he could not conclude "that representation was afforded the bargaining agent by management merely by virtue of the presence at the meeting" of Sherri Hurt, the employee who was also a Union steward. 19 FLRA at 1131. The Judge found that the Respondent's failure to notify the Union of the meeting and provide it with an opportunity to be represented constituted a violation of section 7116(a)(1) and (8) of the Statute.

C. The Authority's Decision in 19 FLRA 1123

The Authority agreed with the Judge that the July 9, 1980 meeting was a formal discussion. However, the Authority found, contrary to the Judge and based on VA Muskogee, that the Union was afforded an opportunity within the meaning of section 7114(a)(2)(A) to be represented at the July 9th [ v29 p3 ] meeting. Therefore, the Authority concluded that since the Union had been represented at the July 9th meeting, no violation of section 7116(a)(1) and (8) of the Statute had been established. 1 Accordingly, the Authority dismissed the unfair labor practice complaint in its entirety.

IV. Analysis on Remand

A. The Authority's Decision in VA Muskogee

In VA Muskogee, 19 FLRA 1054, the Authority concluded that "actual representation by an exclusive representative at a formal discussion is sufficient to demonstrate compliance with the requirement of section 7114(a)(2)(A) of the Statute that such an exclusive representative 'be given an opportunity to be represented.'" Id. at 1056 (footnote omitted). In reaching this conclusion, the Authority rejected its previous requirement that, to be adequate, prior notice of a formal discussion must be specifically given to the "union qua union." VA Muskogee at 1056 n.4. The Authority noted in VA Muskogee that the union was represented at the formal discussion by three union officials, who had not been notified in their capacities as union officials but rather as employees. Id. at 1056. Thus, the Authority found that the union had the opportunity to be represented at the formal discussion, and therefore no unfair labor practice had been committed.

B. The Authority's Decision in McClellan Air Force Base

In McClellan Air Force Base we reexamined the "actual representation" principle established in VA Muskogee. We concluded that the holding in VA Muskogee that actual representation by an exclusive representative is sufficient to demonstrate compliance with section 7114(a)(2)(A) of the Statute did not effectuate the intent of section 7114(a)(2)(A) "to allow the union the right to designate its own [ v29 p4 ] representative to attend a formal discussion." McClellan Air Force Base, 29 FLRA No. 53 (1987), slip op. at 12. Citing Department of the Air Force, 63rd Civil Engineers Squadron, Norton Air Force Base, California, 22 FLRA No. 91 (1986) and Internal Revenue Service, Washington, D.C. and Fresno Service Center, Fresno, California, 16 FLRA 98 (1984), we noted that a union may decide to choose a representative who would be "unaffected by the matters to be discussed at the meeting or one who is outside the direct supervisory chain of those conducting the meeting." McClellan Air Force Base, slip op. at 12. We also stated that prior notice to the union is necessary to enable the union to choose its own representative; in other words, if "actual representation" is sufficient to meet the requirements of section 7114(a)(2)(A), the choice of a union representative might be made by chance or by the agency, rather than by the union. Id., slip op. at 13. Accordingly, we determined that we would no longer follow the principle of "actual representation" established in VA Muskogee.

C. Authority's Decision on Remand

Applying this determination to the facts and circumstances of this case, we conclude that Hurt, the Union steward who was in attendance at the July 9th staff meeting, which we found to be a formal discussion, was not the designated representative of the Union. Further, it is clear from the record that Carelli, the President of the Local and the union representative normally notified of formal discussions, never received notice of the July 9th formal discussion and therefore never had an opportunity to see that the Union's interests were adequately represented at the meeting. Therefore, we conclude that the Respondent did not provide the Union with an opportunity to be represented at the July 9th formal discussion as required by section 7114(a)(2)(A). Accordingly, and consistent with our decision in McClellan Air Force Base, we reverse our previous decision on this matter in 19 FLRA 1123, and find that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to give the Union notice and an opportunity to be represented at a formal discussion by a representative of its choice.

V. Conclusion

Based on the foregoing, we conclude that the Respondent failed to provide the Union with the opportunity to be represented at a formal discussion within the meaning of [ v29 p5 ] section 7114(a)(2)(A) of the Statute. Its failure to comply with the requirements of section 7114(a)(2)(A) violated section 7116(a)(1) and (8) of the Statute.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Department of the Treasury, U.S. Customs Service, Miami, Florida shall:

1. Cease and desist from:

(a) Conducting formal discussions with its employees in the bargaining unit exclusively represented by the National Treasury Employees Union (NTEU), concerning grievances or any personnel policy or practices or other general conditions of employment, including staff meetings conducted for these purposes, without affording NTEU prior notice of and the opportunity to be represented at the formal discussions.

(b) 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) Post at its Miami facility where employees in the bargaining unit are located 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 Regional commissioner, U.S. Customs Service, Miami, Florida, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous 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.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IV, Federal Labor Relations Authority, in writing, [ v29 p6 ] within 30 days from the date of this Order, as to what steps have been taken to comply.

Issued, Washington, D.C. September 30, 1987

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v29 p7 ]

                   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 conduct formal discussions with our employees in the bargaining unit exclusively represented by the National Treasury Employees Union (NTEU), concerning grievances or any personnel policy or practices or other general conditions of employment, including staff meetings conducted for these purposes, without affording NTEU prior notice of and the 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 Statute.

                              _____________________________
                                      (Activity)

Dated:_____________________By:_____________________________
                             (Signature)(Commanding Officer)

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 IV, Federal Labor Relations Authority, whose address is: 1371 Peachtree Street, N.E., Suite 736, Atlanta, Georgia 30367, and whose telephone number is: (404) 347-2324. [PAGE]

FOOTNOTES

Footnote 1 The Authority adopted the Judge's conclusion that the meeting held in late July 1980 was not a formal discussion. The Authority further concluded, contrary to the Judge's finding, that the Respondent's conduct at the July 9th meeting did not constitute a bypass of the Union. These aspects of the Authority's decision are not at issue on remand.

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