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The decision of the Authority follows:
34 FLRA No. 104
FEDERAL LABOR RELATIONS AUTHORITY
LETTERKENNY ARMY DEPOT
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
DECISION AND ORDER
January 26, 1990
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. The Judge found that no past practice existed permitting representatives of the Charging Party (the Union) to accompany bargaining unit employees, upon their request, to meetings with selecting officials to discuss the reasons why an employee was not selected for a promotion. Therefore, he found that the Respondent did not violate section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it declined an employee's request that a Union representative be present at such a meeting. The General Counsel filed exceptions to the Judge's recommended dismissal of the complaint and the Respondent filed an opposition to the exceptions and a cross-exception to the Judge's decision.
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 and the entire record, we adopt the Judge's findings, conclusions, and recommended order, except as noted below.
For the following reasons, we agree with the Judge that the complaint should be dismissed.
The Union is the exclusive representative of a bargaining unit consisting of the Respondent's non-supervisory Wage Grade employees, except those serving under temporary or excepted appointments. The Union and the Respondent are parties to a collective bargaining agreement which became effective on May 24, 1985. The agreement provides in pertinent part:
Section 15. Questions or complaints about the promotion actions should be resolved informally if possible with immediate supervisors and/or rating panel, personnel staffing specialists and Union representation if requested by the employee. The formal means for resolving complaints is through the appropriate grievance procedure.
Section 17. It is agreed that, upon request, the selecting supervisor will advise unsuccessful best qualified candidates of the reasons for the selection made.
ALJ Decision at 2-3.
During the hearing before the Judge, Union stewards testified that, on several occasions between 1978 and 1985, they represented employees at meetings with the employees' supervisors regarding non-selection for promotions. Respondent's witnesses testified that the Union was rarely present at non-selection meetings and, when they were present, it generally was because a complaint was involved under Article 16, Section 15 of the collective bargaining agreement.
There were 141 promotions to non-supervisory positions at the Respondent's facility in 1985, 65 in 1986, and 40 in 1987. In addition, 20 bargaining-unit employees were selected to be supervisors in the 1985-1987 period. The record does not indicate how many selections were made in the preceding years.
On or about October 6, 1987, an employee requested the Union to accompany him to a non-selection meeting scheduled with the Respondent for the next day. A Union representative requested permission to be present at the meeting. The Respondent denied the request. The Respondent stated that Union attendance at non-selection meetings was inconsistent with Article 16, Section 17 of the parties' agreement and "an inappropriate use of official time." ALJ Decision at 4-5.
The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally changing working conditions of unit employees by: (1) terminating a past practice of permitting Union representatives to accompany unit employees, at their request, to meetings with selecting officials to discuss reasons why employees were not selected for promotion; and (2) implementing the change without affording notice to the Union and an opportunity to bargain over the change.
III. The Administrative Law Judge's Decision
A. Preliminary Matters
The Judge rejected the Respondent's contention that the complaint should be dismissed because it was not sufficiently related to the wording of the charge, citing Department of the Interior, Washington, D.C. and Bureau of Indian Affairs, Washington, D.C. and Flathead Irrigation Project, St. Ignatius, Montana, 31 FLRA 267, 276 (1988) and Bureau of Land Management, Richfield District Office, Richfield, Utah, 12 FLRA 686, 698 (1983).
B. The Merits
The Judge rejected the Respondent's contention that the dispute should be resolved under the negotiated grievance procedure because it involves a matter of contract interpretation. The Judge stated that "[t]o the extent that the right in dispute owes its existence to a past practice as opposed to a contractual interpretation the proper forum for determining the existence of such right is the unfair labor practice procedure." ALJ Decision at 6.
The Judge found that the preponderance of the evidence did not establish the existence of a past practice of permitting Union representatives to accompany unit employees to non-selection meetings. The Judge stated that "in order to establish a past practice which has ripened into a condition of employment, it must be shown that the practice has continued for a considerable period of time, was known to management and that management had acquiesced in such practice." Id. (citing Norfolk Naval Shipyard, 25 FLRA 277, 286 (1987)).
The Judge determined that a steward had accompanied unit employees to non-selection meetings on only 10 occasions during a 10-year period in which there were a projected 492 selections. The Judge found that the union representatives had accompanied unit employees to non-selection meetings only sporadically. Accordingly, he concluded that the General Counsel had not established by a preponderance of the evidence that a past practice of stewards accompanying employees to non-selection meetings existed. Consequently, the Judge found that the Respondent did not violate the Statute when it prohibited a union steward from accompanying a unit employee to a non-selection meeting. He, therefore, recommended that the complaint be dismissed.
IV. Positions of the Parties
The General Counsel excepts to the Judge's failure to find that a past practice existed which permitted Union representation at non-selection meetings. The General Counsel contends that "the frequency of the attendance of union representatives at nonselection meetings should have been measured against the number of times their presence was requested, not the number of selection actions." General Counsel Exceptions at 10. The General Counsel contends that the record reflects that representation was requested and provided on numerous occasions; on very few occasions was it denied.
In its opposition to the exceptions, the Respondent supports the decision of the Judge and asserts that the exceptions filed by the General Counsel were not timely filed. In its cross-exceptions, the Respondent repeats its view, presented to and addressed by the Judge, that the complaint should be dismissed because: (1) the wording of the complaint is not sufficiently related to the wording of the charge, and (2) the matter involves a contract dispute which should be resolved through the negotiated grievance procedure.
V. Analysis and Conclusions
A. Preliminary Matters
We find that the General Counsel's exceptions were timely filed. According to the service sheet, the Judge's decision was dated September 21, 1988, and was served on the parties by mail on that date. Under sections 2423.26(c), 2429.21 and 2429.22 of the Authority's Rules and Regulations, in order to be timely filed, exceptions to the Judge's decision had to be postmarked no later than October 24, 1988. The exceptions were postmarked on that date. Therefore, the General Counsel's exceptions were timely filed and have been considered.
Furthermore, we adopt the Judge's finding that the complaint is properly before us. The charge, as amended, alleged violations of section 7116(a)(1) and (5) of the Statute, in that a Union request to accompany a member of the bargaining unit to a discussion with a selecting official regarding non-selection for promotion was denied by the Respondent in violation of the parties' agreement. The complaint alleged that this denial constituted a unilateral change in working conditions of unit employees because it terminated a past practice. We agree with the Judge that, as long as the allegations of the complaint bear a relationship to the charge and are closely related to the events complained of in the charge and the issuance and contents of the complaint comply with our Regulations, the complaint is valid. Here, the allegation of the complaint, that a Union representative was improperly denied permission to accompany a unit employee, is the same as the event complained of in the amended charge. Consequently, the complaint is properly before us.
B. The Alleged Existence of a Past Practice
The unfair labor practice procedure is the proper forum for the resolution of this case. The issue here is not the interpretation of the parties' collective bargaining agreement, but whether Union attendance at non-selection meetings was a past practice.
To the extent that the right in dispute is based on an allegation of a change in established past practice rather than contract interpretation, "the proper forum for determining the existence of such right is the unfair labor practice procedure. This is true even where the established practice . . . is consistent with an arguable interpretation of the provisions of the collective bargaining agreement." ALJ Decision at 6. See Department of Defense Dependents Schools, 12 FLRA 43, 45 n.5 (1983). See also Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 21 FLRA 595, 605 (1986). Furthermore, where the parties by mutual action have gone beyond provisions of an existing contract, conditions of employment may be established by such practice. See Department of the Treasury, Internal Revenue Service (Washington D.C.); and Internal Revenue Service, Hartford District (Hartford, Connecticut), 27 FLRA 322, 325 (1987); see also Letterkenny Army Depot and National Federation of Federal Employees, Local 1429, 5 FLRA 272, 274 (1981) (practices of the shop are part of the collective bargaining agreement although not expressed in it and are part of the aggregate collective bargaining agreement of the parties).
We adopt the Judge's conclusion that the General Counsel did not establish the existence of a past practice, and that the Respondent, therefore, did not violate section 7116(a)(1) and (5) by terminating a past practice without affording the Union prior notice and an opportunity to bargain over the change. However, we differ with the Judge's analysis in one respect.
The Judge noted that past practices may "ripen into conditions of employment." ALJ Decision at 6. Conditions of employment, as defined in section 7103(a)(14) of the Statute, may be established by the parties through express agreement or past practice. However, if a matter does not concern a condition of employment, it cannot become a condition of employment through past practice or agreement between the parties. Rather, it is necessary to conduct an independent analysis of whether a matter satisfies the statutory definition of a condition of employment at the time the dispute arises. Internal Revenue Service, Hartford District, 27 FLRA at 324 (1987); Department of the Navy, Naval Weapons Station Concord, Concord, California, 33 FLRA 770 (1988).
Consideration for promotion is a condition of employment within the meaning of section 7103(a)(14) of the Statute. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, Local 3615, 30 FLRA 562, 566 (1987). It follows that procedures governing the promotion process, including a procedure allowing unit employees to have a union representative accompany them to meetings to discuss their non-selection for promotion, are conditions of employment within the meaning of section 7103(a)(14).
In agreement with the Judge, we find that the preponderance of the evidence does not establish that a past practice of permitting a Union representative to accompany unit employees to non-selection meetings existed. Contrary to the General Counsel's exceptions, the record does not establish that "on numerous occasions representation was requested and provided," and that "[o]n very few occasions was it denied." General Counsel's brief on exceptions at 10. The General Counsel cites no portions of the record to support such assertion, and concedes that "the type of practice alleged here is not the kind for which records are maintained. Of necessity, the evidence regarding the frequency of its exercise is going to involve some non-specific testimony." Id.
The testimony credited by the Judge shows that in a few, sporadic instances Union representatives accompanied employees to non-selection meetings, compared to many such meetings conducted without the attendance of Union officials. The record does not show that at the time of the amended charge, Union representatives accompanied employees to such meetings as an established condition of employment. Norfolk Naval Shipyard, 25 FLRA at 286. Consequently, we adopt the Judge's finding that the Respondent did not violate the Statute when it prohibited a Union steward from accompanying a unit employee to a non-selection meeting.
The complaint in this case is dismissed.
(If blank, the decision does not have footnotes.)