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The decision of the Authority follows:
33 FLRA No. 23
FEDERAL LABOR RELATIONS AUTHORITY
MARINE CORPS LOGISTICS BASE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL UNION 1482
DECISION AND ORDER
October 18, 1988
Before Chairman Calhoun and Member McKee.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to Respondent's exceptions.
The complaint alleged that Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally changing an existing practice without notifying the Charging Party (the Union) and affording it an opportunity to negotiate over the change and/or impact and implementation. The existing practice permitted employees to seek advance sick leave for maternity absence without exhausting annual leave. The Administrative Law Judge (the Judge) concluded that the Respondent's conduct violated the Statute as alleged.
Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge and find that no prejudicial error was committed. We affirm the rulings. We conclude, in agreement with the Judge, that the Respondent violated the Statute by unilaterally changing an established practice without notifying the Union and negotiating over the change.
Mrs. Polly Walker is a bargaining unit employee in the Respondent's Resources Management Division (RMD). In August 1986, Walker submitted a request for advance sick leave. She followed normal procedures in making this request by making the request to her supervisor who forwarded the request up the chain of command to Major Daniel S. Hemphill, the Director of RMD, the final decision maker for such requests. She requested advance sick leave because she did not have enough accrued sick leave to cover the entire 6-week period of a planned maternity absence.
On September 8, 1986, Walker's request was denied by Hemphill. She was advised that she could not have advance sick leave for maternity purposes and that she would have to use up all of her sick leave and annual leave before she could have leave without pay. Walker then submitted a request to use her sick leave and take the remainder of the 6 weeks as leave without pay. On September 10, 1986, Walker's leave without pay request also was denied by Hemphill on the basis that she could not receive leave without pay until she first used her annual leave.
Oscar Carr, the first Vice-President of the Union, met with Hemphill on Walker's behalf and questioned the impact of Hemphill's decision on RMD employees' morale since other Divisions on the Base were granting similar requests for advance sick leave. Hemphill sought advice from the Civilian Personnel Office (CPO). After contacting Esther Gonzales, Head of Labor Relations, Hemphill indicated to Carr that he was denying the requested advance sick leave on the basis of his interpretation of the Base order concerning the use of advance sick leave and on the advice he received from the CPO that Base policy required an employee to use his or her sick leave and annual leave before being permitted to use advance sick leave.
The Union filed the instant unfair labor practice charge, since efforts to resolve the issue were unsuccessful. After the charge was filed, a second employee in Hemphill's Division, Mrs. Roxanne Cabello, requested 120 hours advance sick leave for a maternity absence to begin on January 20, 1987. Her request was denied on the basis that because she had more than 40 hours of annual leave, she must first use that leave before requesting advance sick leave. She subsequently was granted 80 hours of advance sick leave.
In January 1987, Hemphill noticed that the Director of the Material Division approved a Material Division employee's request for 247 hours of advance sick leave. Hemphill sent a letter to the Director of Material Division informing him of the new policy regarding advance sick leave in maternity cases which Hemphill had put into effect in RMD.
In late January or early February 1987, before Hemphill's letter was sent, Esther Gonzales met with Hemphill to discuss advance sick leave. Gonzales testified that she did not realize until then that Hemphill had imposed two restrictions on the use of advance sick leave--which were not in the Base Policy--concerning the use of advance sick leave as follows: (1) employees in the RMD were required to use their annual leave prior to granting advance sick leave; and (2) the RMD prohibited any use of advance sick leave in maternity cases unless the pregnancy was abnormal or there were complications. Gonzales explained to Hemphill that under the Base policy a pregnancy need not be abnormal, and an employee does not have to exhaust annual leave prior to the granting of advance sick leave. Gonzales also explained that the only annual leave that must be used is that which would otherwise be subject to forfeiture. Gonzales recommended that Hemphill's letter not be sent because it misinterpreted the Base policy and the regulations.
III. Judge's Decision
The parties stipulated that on or about September 8, 1986, a past practice existed whereby advance sick leave would not be denied solely because the employee had accrued annual leave, except when that annual leave would be subject to forfeiture. Judge's decision at 11. The Judge found that Respondent changed this past practice without notice to or affording the exclusive representative the opportunity to bargain concerning the existing past practice.
The Judge rejected the Respondent's arguments that (1) it did not repudiate any past practice but merely deviated from the practice pertaining to advances of sick leave; and (2) the denial of leave to Walker was inadvertent, isolated and, therefore, did not constitute a change in the past practice in violation of the Statute. The Judge found that Hemphill altered the policy based on his reading or misreading of the pertinent regulations. The Judge noted that while such misreading may have been based on Hemphill's inexperience with civilian personnel or his insensitivity to personnel practices relating to maternity cases, he, nonetheless, altered the Base policy. The Judge found that this altered policy was applied (1) to Walker's situation in September; (2) to Cabello's case in January; and (3) in the Memorandum which Hemphill was prepared to present to the Material Division in February 1987.
The Judge concluded that whether Hemphill deliberately changed or misapplied the policy and practice based on his belief that the Base was not properly following regulations is irrelevant. He also concluded that whether Hemphill attempted in good faith to follow the Base practice, but misunderstood the existing policy, is also irrelevant. The Judge found that state of mind is not an element of proof necessary to establish a violation of the Statute.
The Judge also concluded that the mere fact that the Division Director must decide whether to grant or deny the requested sick leave does not give the deciding official the authority to establish new and additional requirements, such as those established by Hemphill, without first providing the exclusive representative with an opportunity to bargain. The Judge found that not only did Hemphill make changes in the requirements in his Division but he took it upon himself to inform other Divisions of his view of the regulations, when those Divisions did not exercise their discretion in accordance with his views. Contrary to the argument of the Respondent that Hemphill's actions were isolated, the Judge found based on the above that the promulgation of the change in policy was broad in nature. Judge's Decision at 12.
The Judge also rejected the Respondent's argument that Hemphill acted without seeking any advice or guidance. Id. Rather the Judge found that Hemphill sought Gonzales' view on the matter in September 1986. In addition, the Judge found that the Union had contacted the CPO both verbally and in writing objecting to what it believed to be a change in past practice. In conclusion, the Judge found that Hemphill sought advice concerning the matter and that Respondent's CPO was aware that a distinct problem existed concerning Hemphill's interpretation of the leave provisions in question.
Finally, the Judge rejected the Respondent's claim that the failure to follow the established past practice was an isolated breach of an employment practice where a question or differing or arguable interpretation was raised by the parties. Judge's Decision at 13. The Judge found, contrary to the Respondent's position, that there was an established past practice. The Judge found that despite the fact that Hemphill was informed that he was wrong in his interpretation he continued to follow his interpretation for 5 months, until he was again informed that he had misinterpreted the policy.
The Judge concluded that the practice of (1) granting advance sick leave, especially in maternity cases, and (2) granting advance sick leave even though an employee had an annual leave balance, had become a condition of employment. The Judge found that because the Respondent changed this condition of employment without notifying the Union and providing the Union with an opportunity to bargain, the Respondent violated section 7116(a)(1) and (5) of the Statute.
IV. Positions of the Parties
The Respondent contends that the Judge erroneously found that the Respondent changed a past practice in violation of section 7116(a)(1) and (5) of the Statute by denying Walker and Cabello's requests for advance sick leave for maternity purposes.
The Respondent argues that as to Hemphill's denial of Walker's request for advance sick leave, there is clear and convincing evidence that Hemphill misinterpreted and misapplied the applicable leave regulations without the knowledge or approval of officials of the Respondent's CPO. The Respondent also alleges that there is no evidence that the other four Division Directors were aware of, influenced by, or repeated Hemphill's mistakes.
The Respondent contends that Hemphill's action in granting Cabello 80 hours of advance sick leave instead of the 120 she had requested, was consistent with the applicable Base regulation and with the past practice. Thus, the Respondent argues that it did not violate applicable regulation or the past practice in advancing Cabello 80 instead of 120 hours of sick leave.
The Respondent argues that Hemphill's state of mind is relevant in this case, because the mistakes he made were unintentional and not the result of any change in command policy that he was attempting to implement. Finally, the Respondent contends that there was no "patent breach" but rather an innocent mistake made by an inexperienced Division Director. Thus, the Respondent contends that there was no violation of the Statute and the complaint should be dismissed.
The General Counsel submits that the Respondent's exceptions are without merit and that the Judge's findings and conclusions are supported by the evidence.
The General Counsel argues that the record supports the Judge's finding that the CPO was well aware of a problem with Hemphill's actions because it was informed of these problems by the Union on numerous occasions. Further, the General Counsel argues that even if the CPO was unaware of what was happening, there is nothing in the case law or the Statute which states that supervisors are free to make unilateral changes in working conditions as long as the CPO is unaware of such changes.
The General Counsel alleges that the Judge was correct in finding that there was more than one incident of requests for advance sick leave improperly being denied. Further, the General Counsel contends that, even if there was only one violation of the leave regulations, it would be sufficient to find a violation of the Statute.
In conclusion, the General Counsel contends that the Respondent's argument concerning the impact of the change on employees is misplaced because in cases involving the change of a past practice, the Statute requires that the Respondent must notify the Union of an intent to make a change and then must bargain with the Union on the matter.
V. Analysis and Conclusion
We find, in agreement with the Judge, that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally changing the past practice concerning advance sick leave which existed at the Base on September 8, 1986, without notice to or affording the Union the opportunity to bargain concerning the change.
The record indicates, and the parties stipulated to the fact, that on or about September 8, 1986, a past practice existed whereby an employee would not be denied advance sick leave solely because that employee had accrued annual leave to his or her credit, except when the annual leave would be subject to forfeiture at the end of the leave year. The record also indicates that advance sick leave had been consistently approved for maternity purposes.
On this basis, the Judge correctly found that this practice, which had been consistently exercised for a substantial period of time with the knowledge and consent of the Respondent's management, had become a term and condition of employment. See, for example, Department of the Treasury, Internal Revenue Service (Washington, D.C.); and Internal Revenue Service, Hartford District (Hartford, Connecticut), 27 FLRA 322 (1987).
The Respondent contends through a variety of arguments that there was no change in the past practice; that Hemphill's misinterpretation of the leave policy was an innocent one based on his inexperience; and that his mistake was an isolated incident with little impact on the employees. The Respondent has also made arguments that Hemphill's state of mind or his intent are relevant to the outcome of this case as is the fact that he acted by himself without knowledge of Respondent's CPO.
The record indicates that Hemphill, a supervisor and agent of the Respondent, changed a condition of employment which had been established through past practice regarding the obtaining of advance sick leave by requiring that an employee must exhaust all of his or her annual leave before receiving advance sick leave and that maternity reasons for obtaining advance sick leave were not valid unless there were complications. Where the decision to make a change in conditions of employment is itself negotiable, the extent of the impact of the change in conditions of employment on unit employees is not relevant. The question is whether the statutory obligation to notify and negotiate with the exclusive representative concerning the change was fulfilled. See, Department of Health and Human Services and Social Security Administration, 30 FLRA 922 (1988). Thus, the Respondent's argument that the change was limited to one or two instances and was confined to one Division, and consequently, had little impact on employees is without merit. Further, Hemphill's state of mind or his inexperience have no bearing on this case. The record indicates that Hemphill made a change in a condition of employment which had been established through a past practice. Since the Respondent was obligated to bargain over this change, the failure to do so constituted a violation of section 7116(a)(1) and (5) of the Statute.
Based upon the above analysis and consideration of the entire record in this case, including the parties' contentions, we conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally changing a condition of employment concerning advance sick leave which existed at the Base on September 8, 1986, without notice to or affording the exclusive representative the opportunity to bargain over the change.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the Marine Corps Logistics Base, Barstow, California shall:
1. Cease and desist from:
(a) Unilaterally changing working conditions of bargaining unit employees regarding requirements for approval of advance sick leave for employees in the unit represented by the American Federation of Government Employees, Local 1482, AFL-CIO, without first notifying the exclusive representative and providing it with an opportunity to bargain concerning such change.
(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 polices of the Statute:
(a) Notify and, upon request, negotiate with the American Federation of Government Employees, Local 1482, AFL-CIO, concerning any intended changes in working conditions of bargaining unit employees regarding requirements for obtaining approval of advance sick leave.
(b) Rescind the requirement imposed in September, 1986, that annual leave be exhausted before any request for advance sick leave would be given consideration and restore the prior existing past practice of evaluating requests for advance sick leave without regard to whether it was being requested for maternity purposes and without regard to any annual leave subject to forfeiture.
(c) Make whole any employee, including but not limited to, Polly Walker, for any charge to annual leave incurred as a result of the unilateral change in policy, by retroactively granting the requested advance sick leave and restoring any hours of annual leave used as a result of the unilateral change in policy.
(d) Post at its facility in Marine Corps Logistics Base, Barstow, California, 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 Commanding Officer and they 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.
(e) 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.
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 unilaterally change working conditions of unit employees regarding requirements for approval of advance sick leave for employees in the bargaining unit represented by American Federation of Government Employees, Local 1482, AFL-CIO, without first notifying the exclusive representative and providing it with an opportunity to bargain concerning such change.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce any employee in the exercise of the rights guaranteed by the Federal Service Labor-Management Relations Statute.
WE WILL rescind the requirement imposed in September 1986 that annual leave be exhausted before any request for advance sick leave will be given consideration and restore the previous past practice of evaluating requests for advance sick leave without regard to whether it is being requested for maternity purposes and without regard to any annual leave subject to forfeiture.
WE WILL make whole any employee, including, but not limited to, Polly Walker, for any charge to annual leave incurred as a result of the unilateral change in policy, by retroactively granting the requested advanced sick leave and restoring any hours of annual leave used as a result of the unilateral change.
WE WILL notify and, upon request, negotiate with the American Federation of Government Employees, Local 1482, AFL-CIO, concerning any intended changes in working conditions of bargaining unit employees regarding requirements for obtaining approval of advance sick leave.
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region VIII, whose address is: 350 South Figueroa Street, Room 370, Los Angeles, California 90071, and whose telephone number is: (213) 894-3805.
(If blank, the decision does not have footnotes.)