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The decision of the Authority follows:
36 FLRA No. 65
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
NAVAL AVIONICS CENTER
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
August 10, 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 filed by the General Counsel to the attached Decision of the Administrative Law Judge. The Respondent filed an opposition to the exceptions.
The Judge found that the Respondent did not violate section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) because he found that the Respondent did not unilaterally change the manner of scheduling official time for Union representational meetings. The Judge recommended that the complaint be dismissed.
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 those rulings. We adopt the Judge's findings and conclusions only to the extent consistent with this decision. Contrary to the Judge, we find that the Respondent did unilaterally change an established practice of how representational meetings on official time were scheduled and thus changed working conditions in violation of the Statute. Accordingly, we will issue a remedial order.
The parties' collective bargaining agreement contains several provisions concerning the manner in which official time for representational meetings is scheduled. Article 30, section A of the negotiated agreement provides, in part, that an employee desiring official time for a discussion on work-related subjects with a supervisor/management official and/or Union representative "shall so advise his/her supervisor, and the supervisor, will through appropriate management channels, arrange for a meeting[.]" Article 30, section B provides that "[a]rrangements for such discussions shall be the responsibility of management," and section E states that prior to the use of official time, "the Union official and his/her supervisor should have an understanding of the anticipated time to be used." ALJ Decision at 2-3.
Witnesses testified about the manner in which official time for representational meetings was scheduled both before and after May-June 1988. For at least 6 months before May or June 1988, supervisors of employees wanting a meeting with Union representatives frequently would make arrangements directly with the Union official involved, rather than going through the Union official's supervisor. As detailed below, during the May-June period management notified various Union officials that there would be a change in the manner of scheduling meetings. The Judge found that after that time, "the frequency of calls to Union officials by supervisors desiring meetings . . . declined markedly. . . ." Id. at 10.
Before May or June 1988 the Union president, William O. Wagoner, usually scheduled the meetings himself after being called by an employee's supervisor. Wagoner then would inform his own first line supervisor that the meeting had been scheduled. Further, Wagoner scheduled at least 50 percent of his meetings during the 4 years when he served as executive president and chief steward prior to becoming president in November 1987. Wagoner testified that in a meeting with his supervisor in May or June 1988, the supervisor informed him that "[Wagoner] was no longer going to be allowed the latitude of arranging [his] own meetings . . . [The supervisor] had been told by upper level management that meetings had to be arranged through him . . . ." Id. at 5. Thereafter, the supervisor did most of the scheduling.(*) Wagoner's second level supervisor now schedules meetings for him in the absence of his immediate supervisor. When employees' supervisors do call Wagoner directly to arrange for representational meetings with him, he schedules the meetings.
Two other Union officials, Stanley M. Perry and Leroy Stinson, also experienced similar changes in their ability to schedule their own meetings. At the time of the hearing, Perry had been chief steward since December 1987. According to the credited testimony of Talbott, Perry's first level supervisor, Perry had arranged his own meetings until June 1988, when a problem arose. As found by the Judge, Talbott then informed Perry they would return to the "way it used to be," and that Talbott would set up all of Perry's meetings. ALJ Decision at 7.
Stinson had been deputy chief steward since November 1987 and chief steward for about 18 months before that. Before the May-June 1988 period he had arranged 50-75 percent of his meetings. In May or June, Claude L. Strunk, his supervisor for the prior 6 to 8 months, told Stinson that henceforth Strunk was going to arrange all of Stinson's meetings. Although Stinson continues to arrange his own meetings when upper level management calls him, Strunk now arranges all of Stinson's meetings with first line supervisors.
III. Administrative Law Judge's Decision
The Judge dismissed the complaint, finding that there had been no change in the manner of scheduling official time for Union representational meetings. The Judge found that the manner of scheduling such meetings, "as mandated by the Agreement and forged by practice, has always been that a supervisor arranges the meeting with the Union Official." ALJ Decision at 10. He also found that to the extent that employees' supervisors contacted Union officials directly, "it was not shown to have been either a consistent practice, or a practice known to management. . . ." Id. at 9. He also noted, however, that "the frequency of calls to Union officials by supervisors desiring meetings [had] declined markedly. . . ." Id. at 10.
IV. Positions of the Parties
A. General Counsel's Exceptions
The General Counsel argues that the Judge relied solely on the language of the collective bargaining agreement, and failed to consider the past practice that had developed between the parties regarding the scheduling of meetings. The General Counsel's position is that the Respondent unilaterally changed the established past practice in violation of the Statute.
B. Respondent's Opposition to the Exceptions
The Respondent maintains that there is no evidence of a consistent past practice for arranging meetings. The Respondent also argues, however, that the Judge did not fail to consider past practice, but rather that he found no change in that practice regarding the manner of scheduling meetings.
V. Analysis and Conclusions
Resolution of this case depends on whether there was an established past practice surrounding the scheduling of official time for representational meetings that changed after May-June of 1988. The fact that the negotiated agreement addressed the matter is not conclusive, if it is shown, in fact, that over a period of time the parties had engaged in a practice regarding the scheduling of such meetings that differed from the contractual procedure. If this showing is made, and the practice satisfies the statutory requirements of section 7103(a)(14), it is a condition of employment that cannot be unilaterally altered. Letterkenny Army Depot, 34 FLRA 606, 610-11 (1990). See also Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 19 FLRA 1085 (1985).
The scheduling of official time meetings between employees and their union representatives on work-related subjects is a condition of employment. See, for example, Military Entrance Processing Station, Los Angeles, California, 25 FLRA 685, 689 (1987). See also American Federation of Government Employees, Local 2761 and Department of the Army, Army Publications Distribution Center, St. Louis, Missouri, 32 FLRA 1006, 1012 (1988).
In finding no change in the manner of scheduling official time meetings, the Judge stated that there had been "no consistent practice . . . known to management," and he emphasized that meetings between unit employees and their Union representatives always have been arranged by the supervisor of the employee requesting the meeting and the Union official. ALJ Decision at 9. In this regard, he stated that "whether [employees'] supervisors call the Union official [directly] or whether they call the supervisor of the Union official . . . who arranges the meeting with the Union official, the manner of scheduling Union representational meetings has not changed." Id. at 10. Thus, he concluded that the meetings "have always been, and are now . . . arranged by management." Id. at 9. We do not agree that the two situations are the same, even if they involve the common feature of being "arranged by management." Rather, we conclude that the record establishes a management practice of contacting Union officials directly to arrange meetings, that management was aware of the practice, that there was a unilateral change in that practice in May-June 1988. We conclude, therefore, that a unilateral change in a condition of employment resulted.
The Union president, Wagoner, testified that in May or June 1988 his supervisor told him that upper level management had directed that meetings be arranged through the supervisors, and that Wagoner would no longer be allowed to arrange his own meetings. In addition, Wagoner's second level supervisor schedules meetings for him in the absence of the first level supervisor. The Judge's conclusion that "when supervisors call Mr. Wagoner he can and does set the time for meetings", id. at 6, begs the question. The real issue is that supervisors of employees requesting meetings no longer call Wagoner with about the same frequency as before, and that they now more often call his supervisor directly.
The Union chief steward, Perry, also set his own meetings from late December 1987 or early January 1988 until June 1988. Since that time, his supervisor arranges the meetings unless the supervisor is not present and Perry gets a call.
Stinson, another Union official, also experienced a similar change in scheduling procedures. In May or June 1988, Stinson's supervisor told Stinson that he would arrange all of Stinson's meetings. Prior to that time, Stinson had arranged 50-75 percent of his own meetings. Although upper level management still calls Stinson directly, lower level management now arranges meetings with Stinson through his first line supervisor.
We conclude that, prior to May or June 1988, there was an established practice for setting up meetings that included frequent direct contacts between the supervisors of employees requesting meetings and Union officials. Wagoner had scheduled the majority of his own meetings after he became Union president in November 1987, and for 4 years before that when he held other Union offices. Perry had arranged his own meetings from the time he became chief steward in December 1987 until June 1988. Stinson also had arranged the majority of his own meetings since November 1987 as deputy chief steward and before that as chief steward for 18 months. In view of this evidence, we find, contrary to the Judge, that there was a consistent practice extending for at least 6 months and perhaps for as long as 4 years or longer that existed with management's knowledge and participation. We further conclude that in May-June 1988 the Respondent changed that practice and that since that time, as found by the Judge, its managers have "markedly" decreased the frequency of their direct contacts with the Union officials and instead more often arrange such meetings through the supervisors of Union officials. ALJ Decision at 10. We note that, as there was an established past practice, it is unnecessary to interpret the negotiated agreement.
Significantly, the new procedure was implemented without any suggestion by management that it recognized an obligation to bargain over the change. Indeed, management has maintained all along that no change occurred. Further, the new procedure was announced as a fait accompli to all three of the Union officials who testified. See U.S. Department of Interior, Bureau of Reclamation, 20 FLRA 587, 600 (1985). Thus, there is no suggestion that the Union might have waived its right to bargain by not responding with bargaining proposals to a notice of a proposed change. Rather, the change was put into effect by several managers without notice to the Union, and the record demonstrates that it would have been futile for the Union to request bargaining in these circumstances.
We conclude that the Respondent unilaterally changed the practice by which it scheduled official time meetings requested by employees with their Union representatives, thereby changing a condition of employment without the necessary notice and bargaining with the Union. By this act, the Respondent violated section 7116(a)(1) and (5) of the Statute.
Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Navy, Naval Avionics Center, Indianapolis, Indiana shall:
1. Cease and desist from:
(a) Unilaterally changing conditions of employment of bargaining unit employees by changing the practice by which it schedules official time meetings requested by employees with their Union representatives without first notifying the American Federation of Government Employees, Local 1744, AFL-CIO, the exclusive representative of its employees, and affording it an opportunity to bargain about the decision to change such conditions of employment.
(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) Rescind the new practice by which it schedules official time meetings and reinstate the usual practice.
(b) Notify the American Federation of Government Employees, Local 1744, AFL-CIO, the exclusive representative of its employees, of any intention to change the practice by which official time meetings are scheduled and, on request, bargain with the Union about any decision to change the practice.
(c) Post at its facility 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, Naval Avionics Center, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that the 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, Region V, 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 conditions of employment of our employees by changing the practice by which we schedule official time meetings requested by employees with their Union representatives without first notifying the American Federation of Government Employees, Local 1744, AFL-CIO, the exclusive representative of our employees, and affording it an opportunity to bargain about the decision to change such conditions of employment.
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 new practice by which we schedule official time meetings and reinstate the previous practice.
WE WILL notify the American Federation of Government Employees, Local 1744, AFL-CIO, the exclusive representative of our employees, of any intention to change the practice by which official time meetings are scheduled and, on request, bargain with the Union about any decision to change the practice.
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 V, Federal Labor Relations Authority, whose address is: 175 W. Jackson Blvd., Suite 1359-A, Chicago, IL 60604 and whose telephone number is: (313) 353-6306.
(If blank, the decision does not have footnotes.)
*/ Although the Judge was skeptical about Wagoner's assertion that, as Union president, he had scheduled 98 percent of his meetings before June 1988, ALJ Decision at 10, the Judge did not discredit Wagoner's testimony that a significant change in scheduling official time for representational meetings occurred after that time.