[ v25 p685 ]
25:0685(57)CA
The decision of the Authority follows:
25 FLRA No. 57
MILITARY ENTRANCE PROCESSING STATION
LOS ANGELES, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2866, AFL-CIO
Charging Party
Case Nos. 8-CA-50566
8-CA-60005
DECISION AND ORDER
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority
based on exceptions filed by the General Counsel and cross-exceptions
filed by the Respondent to the attached Decision of the Administrative
Law Judge. The exceptions and cross-exceptions are limited to the
Judge's Decision in Case No. 8-CA-50566. The Respondent also filed an
opposition to the General Counsel's exceptions.
The complaint in Case No. 8-CA-60005 alleged that the Respondent
violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute) when it unilaterally
confiscated the Union's filing cabinet. The Judge concluded that the
Respondent's conduct in unilaterally confiscating the Union's filing
cabinet constituted a violation of section 7116(a)(1) and (5) of the
Statute. The Judge found that because the Respondent had provided the
Union with the cabinet in 1983, it was obligated to bargain with the
Union prior to depriving the Union of its use. No exceptions were filed
by any party with respect to the Decision of the Judge in Case No.
8-CA-60005. Noting that the Judge's conclusion is supported by
substantial reasoning and noting particularly the absence of exceptions,
we adopt the Judge's conclusion and supporting rationale in Case No.
8-CA-60005.
The complaint in Case No. 8-CA-50566 alleged that the Respondent
unilaterally implemented a change in the procedure concerning (1) how
non-employee representatives of the Charging Party gain access to the
Respondent's facility, and (2) when such representatives can meet with
bargaining unit employees. The complaint alleged that this unilateral
change violated section 7116(a)(1) and (5) of the Statute.
II. Background of Case No. 8-CA-50566
There are two separate allegations in this case. The first concerns
whether the Respondent unilaterally changed the manner in which the
Union president, a non-employee of the Military Entrance Processing
Station (the Station), gained access to the Station. The Judge noted
that the parties disagreed over when the change occurred. The
Respondent maintained that the change occurred at a meeting in January
1985, more than six months prior to the date on which the charge was
filed. The Respondent argued therefore that the complaint must be
dismissed as untimely filed under section 7118(a)(4)(A). The General
Counsel argued that the change did not occur until July 1985, when the
Union representative received a letter in which he was reminded that he
was to schedule his meetings in advance through the Commander.
The Judge found that for many years the Union president had gained
access to the Station through the Respondent's supervisors, and that
this practice was unilaterally changed by the Commander at a meeting on
January 15, 1985, when she informed the president that thereafter all
permission for access to the Station would be through her office. The
Judge further found that the July letter merely reiterated the January
15 instruction. Therefore, he concluded that section 7118(a)(4)(A) of
the Statute mandated dismissal of the complaint because the charge was
filed on September 18, 1985, more than six months after the change in
the manner of access to the Station had occurred.
The Judge rejected the General Counsel's contention that because the
instruction was not conveyed to subordinate supervisors and the Union
president continued to follow the past procedure, the change did not
occur until July. The Judge noted that (1) because the Union president
was the only non-employee affected, there was no reason for the
Commander to suspect that he would not follow the procedure; and (2)
when the Union president was observed violating the procedure the
Respondent took immediate action. The Judge also concluded that if the
charge had been timely filed, he would have found that the unilateral
change in the manner of access to the Station was a change in a
condition of employment established by past practice in violation of
section 7116(a)(1) and (5) of the Statute.
The second allegation of the complaint concerned the Respondent's
alleged change in the scheduling of meetings between Union
representatives and employees without negotiating over the substance of
the change. As to this allegation, the Judge concluded that the
Respondent violated section 7116(a)(1) and (5) of the Statute. He found
that both the Union steward and the president were informed on or about
September 12, 1985, that thereafter all meetings would have to be
scheduled after 11:30 a.m. He further found that no restraint had been
placed on the scheduling of these meetings prior to this change. The
Judge concluded that the Respondent unilaterally changed an established
condition of employment without engaging in the bargaining required by
the Statute.
III. Positions of the Parties
The General Counsel excepted to the Judge's dismissal for
untimeliness of the aspect of the consolidated complaint in Case No.
8-CA-50566 concerning the alleged unilateral change in the manner in
which non-employee Union representatives gained access to the Station.
The General Counsel reiterated arguments previously made to the Judge
that the change in the manner of access did not occur until July 1985.
The Respondent opposed the General Counsel's exceptions, repeating
arguments previously made to the Judge concerning both timeliness and
the merits of the unfair labor practice allegations. The Respondent
repeated these arguments in its cross-exceptions, where it contends that
(1) the change in the manner of access to the Station was not negotiable
because it was an exercise of the Respondent's right to designate its
representatives and (2) the change in the scheduling of meetings between
Union representatives and bargaining unit employees was not negotiable
because it was an exercise of its right to assign work which had an
insufficient impact on working conditions to trigger an obligation to
bargain.
IV. Analysis
We conclude, in agreement with the Judge, that the unfair labor
practice charge in Case No. 8-CA-50566 concerning the change in the
manner of access to the Station was not filed within six months of the
occurrence of the change, and therefore the complaint must be dismissed
under section 7118(a)(4)(A) of the Statute. The Judge's findings and
conclusions are supported by substantial evidence in the record, and we
affirm them. Because we agree with the Judge that the charge was
untimely filed, we find it unnecessary to consider and do not pass upon
the Judge's discussion as to what his conclusion would have been had the
charge been filed timely.
We also conclude, in agreement with the Judge, that the Respondent's
unilateral change in the scheduling of Union representatives' meetings
with bargaining unit employees constituted a change in a condition of
employment in violation of section 7116(a)(1) and (5) of the Statute.
We reach this conclusion for the following reasons.
The Agency unilaterally changed its policy concerning when unit
employees can use official time to meet with non-employee union
representatives. That change involves the use of official time which
section 7131(d) of the Statute authorizes the parties to negotiate. In
section 7131(d), Congress provided that agencies and unions should
jointly determine through negotiations the amount of official time to be
available to employees during any given time period that is "reasonable,
necessary, and in the public interest." See American Federation of
Government Employees, Council of Locals No. 214 (v.) FLRA, 798 F.2d
1525, 1530 (D.C. Cir. 1986). To the extent that the Agency's objection
to negotiating over the substance of its decision to change its policy
regarding amounts of official time available to employees during morning
hours is grounded in a generalized concern to carry out its mission,
such as generalized concern "cannot displace a specific congressional
provision providing for the negotiability of official time proposals."
Id. Further, insofar as the Agency's objection to negotiating over the
substance of its policy change is based on management's right to assign
work under section 7106(a) of the Statute, this objection must also be
rejected. Section 7131(d) "carves out an exception" to management's
right to assign work; otherwise, that right "would preclude any
negotiation of official time provisions, since official time always
affects an agency's ability to assign work." 798 F.2d at 1530-31 (n).8.
See also, National Association of Government Employees, SEIU, AFL-CIO
and Veterans Administration Medical Center, Brockton/West Roxbury, Ma.,
23 FLRA No. 74 (1986), slip op. at 4.
Therefore, the use of official time under section 7131(d) -- that is,
its amount, allocation and scheduling -- is negotiable absent an
emergency or other special circumstances not present in this case. See,
for example, section 7106(a)(2)(D). Parties may protect their interests
in the negotiation process. See AFGE, Council of Locals No. 214, 798
F.2d at 1530 ("An agency has no obligation to abandon what it conceives
to be the best interests of the agency merely because it must negotiate
on an official time proposal.").
The substance of the Agency's decision to change its policy regarding
amounts of official time to be available to employees during morning
hours was therefore negotiable, and consequently the Agency's decision
to implement this change without bargaining was an unfair labor
practice. /*/
V. Conclusion
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, find that no prejudicial error was committed,
and affirm those rulings. We have considered the Judge's Decision and
the entire record, and adopt the Judge's findings, conclusions and order
as modified above.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Military Entrance Processing
Station, Los Angeles, California, shall:
1. Cease and desist from:
(a) Failing or refusing to negotiate in good faith with American
Federation of Government Employees, Local 2866, AFL-CIO, the exclusive
representative of its employees, by unilaterally changing the past
practice whereby Union officials are allowed to meet for
representational purposes prior to 11:30 a.m.
(b) Failing or refusing to negotiate in good faith with American
Federation of Government Employees, Local 2866, AFL-CIO, the exclusive
representative, by confiscating the filing cabinet and confidential
files of the Union.
(c) 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) Restore the past practice whereby Union officials are permitted
to meet for representative purposes prior to 11:30 a.m.
(b) Post at the facilities of the Military Entrance Processing
Station, Los Angeles, California copies of the attached Notice on forms
to be furnished by the Federal Labor Relations Authority. Upon receipt
of such forms, they shatl be signed by the Commander 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 staps shall be taken to
ensure that the Notices are not altered, defaced, or covered by any
other material.
(c) 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.
Further, the remaining allegation of the consolidated complaint in
Case No. 8-CA-50566 is dismissed.
Issued, Washington, D.C., February 13, 1987
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY
AND IN
ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED
STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to negotiate with American Federation of
Government Employees, Local 2866, AFL-CIO, the exclusive representative
of our employees, by unilaterally changing the past practice whereby
Union officials are allowed to meet for representational purposes prior
to 11:30 a.m.
WE WILL NOT fail or refuse to negotiate with American Federation of
Government Employees, Local 2866, AFL-CIO, the exclusive representative
of our employees, by confiscating the filing cabinet and confidential
files of the Union.
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.
WE WILL restore the past practice whereby Union officials are
permitted to meet for representational purposes prior to 11:30 a.m.
Military Entrance Processing
Station,
Los Angeles, California
Dated: . . . By: . . .Commander
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 VIII, Federal Labor Relations Authority, whose address
is: 350 South Figueroa Street, 10th Floor, Los Angeles, CA 90071, and
whose telephone number is: (213) 894-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case NoS.: 8-CA-50566 and 8-CA-60005
MILITARY ENTRANCE PROCESSING STATION,
LOS ANGELES, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2805, AFL-CIO
Charging Party
John R. Pannozzo, Esquire. For General Counsel
Lt. Colonel Wade B. Morrison, for Respondent
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101, et seq. and the Rules and Regulations issued thereunder.
Pursuant to charges filed on September 18, 1985 and October 4, 1985
in Case Nos. 8-CA-50566 and 8-CA-60005, respectively, by American
Federation of Government Employees, AFL-CIO, Local 2866, (hereinafter
called the Union or Local 2866), a Consolidated Complaint and Notice of
Hearing was issued on December 30, 1985 by the Regional Director for
Region VIII, Federal Labor Relations Authority, Los Angeles, California.
The Consolidated Complaint alleges that the Military Entrance
Processing Station, Los Angeles, California, (hereinafter called the
Respondent or MEPS), violated Sections 7116(a)(1) and (5) of the Federal
Service Labor-Management Relations Statute, (hereinafter called the
Statute), by unilaterally changing the working conditions of unit
employees by virtue of its actions in (1) confiscating a file cabinet
containing confidential union files and (2) altering the procedures
governing both the time and manner in which non-employee Union
representatives may enter the MEPS facility for purposes of meeting with
unit employees. The above changes were allegedly implemented without
giving prior notice to the Union and affording it the opportunity to
negotiate over such changes in working conditions.
A hearing was held in the captioned matter on February 26, 1986, in
Los Angeles, California. All parties were afforded the opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues involved herein. The General Counsel and
the Respondent submitted post-hearing briefs on April 9 and 10, 1985,
respectively, which have been duly considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
MEPS, which is responsible for processing applicants for the armed
services, was formerly located in a multi-storied building on Wilshire
Boulevard prior to May 1985 when it moved to its present location on
Rodeo Road in Los Angeles, California. The Wilshire Boulevard location
contained a security desk on the first floor, an operations section on
the second floor, a medical section on the third floor and a testing
area along with headquarters on the fourth floor. The present location
of MEPS on the Rodeo Road is composed of two buildings with a connection
corridor shaped in a letter B configuration. Although not clear it
appears that the MEPS operation is conducted on the first floors of the
connecting buildings and egress is solely through a corridor connecting
both buildings.
According to the record the applicants for military service processed
by MEPS fall into two groups. One group are those applicants who have
already been accepted and are reporting for medical processing prior to
being shipped later in the day to a military installation. Although not
entirely clear from the record, the second group appears to be first
time applicants for enlistment who are undergoing medical examinations.
/1/ Both groups arrive at about 5:00 a.m. The shippers, who are
preparing for basic training, are given a quick physical and then meet
with their counselors prior to disembarking by plane between the hours
of 11:00 a.m. and 2:00 p.m. for basic training. The dep ins following
their medical examinations are sent to the operations section for
further processing.
Local 2866 is the recognized exclusive representative of the Civilian
employees at MEPS. The president of Local 2866 for the past nine years
has been Mr. Gil Sanchez. In his capacity as president of Local 2866 he
has represented unit employees in such matters as grievances under the
negotiated grievance procedure, ULP's, employee complaints and
employment discrimination. The shop steward is Ms. Mae Lapadula, who
has been employed in the medical section of MEPS for approximately ten
years. Her immediate supervisor is Mr. Lee Sturgis. According to Ms.
Lapadula, who assumed her position as shop steward in August 1983, when
changes in conditions of employment were made at MEPS notification of
such changes were given to both her and Local 2866.
Lt. Colonel Karen Rankin has been the Commander at MEPS since August
1984. Her adjunct is Captain Reynolds. Lt. J. G. Glover is the medical
administrative officer and Mr. Charles Stafford is the supervisor of
operations. The MEPS labor relations are handled, pursuant to a
servicing agreement, by the Los Angeles Air Force Station. Mr. Kenneth
Oprisko is the Chief of Employee and Labor Management Relations at the
Los Angeles Air Force Station and Ms. Kristen Ogley is a Labor Relations
Specialist at the same installation.
Case No. 8-CA-60005, Alleged Illegal Confiscation of File Cabinet and
Files.
In September 1983, shortly after assuming the position of Union
Steward, Ms. Lapadula spoke to the former Supervisor of Operations, Mr.
Henry Patrick, and informed him that her personal locker was not large
enough to store her union files. Whereupon, Mr. Patrick obtained a five
drawer file cabinet from the storage room for use by Local 2866. The
file cabinet was kept in various locations throughout the MEPS facility.
Upon the move from the Wilshire Boulevard location to the Rodeo Road
location the file cabinet was placed in the ladies lounge which is
located across from the medical department. The file cabinet which
contained, among other things, ULP charges, personal data, grievances,
reprimands and various other materials associated with labor-management
relations, remained in the ladies lounge until on or about October 3,
1985 when it was confiscated and/or appropriated by MEPS
representatives.
According to Lt. Col. Rankin, in late August or early September 1985,
MEPS was ordered to conduct AIDS testing of all applicants for
enlistment in the armed services. The results of such AIDS tests were
to be contained in a "secured" file. Following a search of its existing
filing facilities it was determined that the five drawer file, being
utilized by Ms. Lapadula in her capacity as Local 2866 Steward was the
"most available" since it contained the least amount of documents, could
be locked and its use would be less disruptive to the MEPS mission.
Thereafter, Sgt. Bratcher, Ms. Lapadula's second line supervisor,
approached Ms. Lapadula and inquired if she could get along with a four
drawer file because MEPS was in need of a file similar to the five
drawer file being utilized by Local 2866. Being under the impression
that the switch of files was only a temporary situation, Ms. Lapadula
indicated her assent to the switch. At approximately the end of
September, Ms. Lapadula was called into Lt. Col. Rankin's office and
told of MEPS' intention to switch the Union's five drawer file for a
smaller file. When Ms. Lapadula replied that she was ready at any time,
Lt. Col. Rankin informed her that the switch would take place within the
hour. Subsequently, when Ms. Lapadula met with Sgt. Bratcher to switch
her Union memoranda from the five drawer file cabinet she was presented
with four separate field lockers rather than a file cabinet with four
drawers. The field lockers resembled a foot locker and each possessed a
separate key. Further, according to Ms. Lapadula, the field lockers
were rusty and dirty. Ms. Lapadula informed Sgt. Bratcher that she
could not make the switch because it would be too hard on her to open
each lock separately every time she needed a paper. According to Ms.
Lapadula, whom I credit, she was under the impression that she was
getting a four drawer file cabinet.
On October 1, 1985, Ms. Lapadula met twice with Lt. Clover concerning
the Union's file cabinet. Upon being told during the first meeting by
Ms. Lapadula that there would be no switch until she received a suitable
four drawer file cabinet, Lt. Glover replied that he intended to have
the five drawer file and to get the key to the file even if he was
forced to break into the file. At the second meeting that afternoon,
Lt. Glover reiterated his intention of breaking into the file. Ms.
Lapadula replied that she had no intention of surrendering the file
cabinet until she had a suitable replacement.
On October 2, 1985, Ms. Lapadula met with Captain Reynolds who
reiterated the position of Lt. Glover. Ms. Lapadula stuck to her
position and informed Captain Reynolds that if he intended to forcefully
open her file cabinet he should do it in her presence.
Upon hearing of the position taken by Ms. Lapadula, namely, that she
was unhappy with the appearance of the field lockers and the fact that
they had to be unstacked and placed on the floor to be opened, Lt. Col.
Rankin, without any further discussion with Ms. Lapadula, ordered her
subordinates to effectuate the switch.
On October 2, 1985, between 2:45 p.m. and 3:00 p.m. after Ms.
Lapadula's departure from work, Respondent's representatives removed the
Union's files from the filing cabinet and transferred them to the four
field lockers which were stored under lock and key in the supply room.
Upon arrival at work on October 3, 1985, Ms. Lapadula discovered that
her file cabinet had been removed and immediately proceeded to Lt.
Glover's office where she was informed of the switch and Respondent's
willingness to give her the keys to the field lockers if she
relinquished the key to the file cabinet. At this time Ms. Lapadula was
unaware of where her union files were located. Moreover, she was also
unaware that Respondent had a duplicate key to her files.
Thereafter, Ms. Lapadula held a number of telephone conversations
with Union President Sanchez who ultimately instructed her to give the
key to the file cabinet to Respondent representatives with the
understanding that they would surrender the keys to the field lockers.
Ms. Lapadula relinquished her key to the file cabinet but Lt. Glover
refused to give her the keys to the field lockers. Lt. Glover informed
Ms. Lapadula that Mr. Sanchez would have to come in a personally get the
keys.
Later that day Mr. Sanchez made arrangements with Lt. Col. Rankin to
pick up the keys to the field lockers at 11:00 a.m. on October 4, 1985.
However, when Mr. Sanchez did not arrive at MEPS until approximately
12:30 p.m. Respondent refused to make the keys available since the
specific people she wanted to witnesses the exchange of the files were
not present.
On October 8, 1985, Mr. Sanchez drafted a letter to Lt. Col. Rankin
wherein he requested the keys be turned over to Ms. Lapadula and
informed Lt. Col. Rankin that once she had the keys he would schedule a
visit to the MEPS facility for purposes of taking inventory of the
Union's files. On October 11, 1985 Lt. Col. Rankin called Ms. Lapadula
into her office, apologized for the way the file cabinet switch had been
handled and gave her the keys to the field lockers. At approximately
the same time Lt. Col. Rankin directed her staff to secure another
filing cabinet for the Union. According to Ms. Lapadula and Mr. Sanchez
they finally got access to the locked storage room and their files on
October 17, 1985. The files were then transferred to a five drawer file
cabinet supplied by MEPS and the file cabinet was moved back to its
original location in the ladies lounge where, as in the past, they had
unrestricted access to the union files. /2/
The record reveals that the implementation of the AIDS program did
not commence until October 15, 1985 at the earliest.
Case No. 8-CA-50566 Alleged Unilateral Change Concerning The Manner
In Which Non-employee Representatives Achieve Access To MEPS and The
Time When Such Access Will Be Allowed.
According to the uncontested testimony of Mr. Sanchez, the
non-employee President of the Union, for the past nine years he had been
visiting the MEPS facility on the average of three times a month. Many
of the visits were for purposes of meeting with a unit employee in his
specific work area. The visits were always approved in advance in
accordance with Article VI, Section 2(b) of the collective bargaining
contract in effect between the Union and MEPS. Upon being contacted by
the employee, Mr. Sanchez would schedule an appointment with the
employee subject to the employee securing approval of the time and place
from his or her immediate supervisor. Upon subsequently being informed
by the employee that he had secured permission for the meeting from the
immediate supervisor to confirm that he, the supervisor, had approved
the time and place of the meeting, etc., at the MEPS facility. At no
time, prior to the events herein, did Mr. Sanchez check with any other
management official prior to entering the MEPS facility.
On January 15, 1985, Lt. Col. Rankin, Ms. Ogley, Mr. Sanchez and Mr.
Shoats, an AFGE Local Representative, met at the MEPS facility for
purposes of bargaining over the issue of wearing white uniforms in the
medical section. During a break in the proceedings while the parties
awaited the appearance of Union Steward Lapadula, Mr. Sanchez and Mr.
Shoats took a walk around the facility. Upon their return Lt. Col.
Rankin, who had been concerned about the presence of unauthorized people
in the facility spoke to Mr. Sanchez and informed him that thereafter
all permission for access to the MEPS facility would be through her, the
Commander's office. /3/
Lt. Col. Rankin acknowledged that she knew that she was changing
procedure when she informed Mr. Sanchez that access to the MEPS facility
would only be through her office. Lt. Col. Rankin further acknowledges
that she did not inform either security or her lower ranking supervisors
of the change in the access procedure imposed upon Mr. Sanchez.
Despite Lt. Col. Rankin's instructions, Mr. Sanchez during the period
January 15 - July 23, 1985 continued to shchedule meetings with the unit
employees through their respective immediate supervisors. Thus,
according to Mr. Sanchez' appointment log, Mr. Sanchez met on the
following dates with the immediate supervisors of various unit
employees; February 1, 11, 19; March 4, 12, 15, 27, and 29; April 4,
9, 12, 19, and 25; May 15 and 20; June 7 and 18; July 9 /4/ and 23,
1985.
On July 23, 1985, Mr. Sanchez arrived at 11:30 a.m. for a scheduled
appointment with Acting Commanding Reynolds. Supervisor Charles
Stafford noticed Mr. Sanchez, inquired if he had an approved appointment
and, upon being informed that he did at 1:30 p.m., escorted Mr. Sanchez
from the building. Thereafter by letter dated July 24, 1985, Ms. Ogley
wrote a letter to Mr. Sanchez which read in pertinent part as follows:
"There have been several instances of subject visits by you
over the past several months. On each occasion you have been
reminded by a management representative that you must schedule
your visits to the LA MEPS in advance through the Commander so
that appropriate arrangement for such visits can be made at a time
and place convenient to all parties. I was present at such a
discussion between LTC Rankin, LA MEPS Commander, you and Mr.
Shoats, AFGE Local regional representative on 15 Jan 85, where the
requirement to schedule your visits in advance through the
Commander was very clearly stated to you.
"On 23 July 85 at approximately 11:30 a.m. you again made an
unscheduled visit to LA MEPS. The fact that you had a 1:30 p.m.
appointment with the acting Commander, CPT Reynolds, does not
change or waive the requirement placed on you to schedule all
visits in advance through the Commander."
By letter 2 August 1985, Mr. Sanchez replied to the Ms. Ogley letter.
The Union took the position that it had been complying with the
provisions of the collective bargaining contract /5/ and accused the
Respondent of attempting to discourage the Union representative from
visiting the premises in violation of the Statute.
On September 10, 1985, Mr. Sanchez received a telephone call from Ms.
Lapadula requesting a meeting. Time, date and place were tentatively
discussed and Mr. Sanchez informed her that she should schedule a
meeting for 10:00 a.m. on September 12, 1985, with her immediate
supervisor, Mr. Lee Sturgis. Later that same day, Mr. Sanchez received
another telephone call from Ms. Lapadula stating that Mr. Lee Sturgis
had approved the 10:00 a.m. meeting for September 12, 1985.
On September 11, 1985, Mr. Sanchez received a telephone call from Ms.
Lapadula in which he was informed by Ms. Lapadula that Mr. Sturgis had
cancelled the previously approved meeting. According to Ms. Lapadula,
Mr. Sturgis had informed her that he no longer had the authority to
grant Mr. Sanchez permission to come onto the facility, and that
approval and arrangements for subsequent representational meetings would
have to be made through Lt. Col. Rankin or her staff. Mr. Sanchez then
called Mr. Sturgis to confirm the cancellation of the approved meeting.
Mr. Sanchez was told that the Commander required all non-employee
visitors to coordinate with the Command Section before they entered the
installation. According to Mr. Sanchez, this incident represented the
first time that he was not permitted to coordinate his access onto the
MEPS facility through the employee's immediate supervisor. Mr. Sanchez
called Mr. Ogley and took the position that Respondent had arbitrarily
changed policies and procedures regarding representation.
On September 12, 1985, Mr. Sanchez, under protest, called Captain
Reynolds to rechedule the previously cancelled meeting. Captain
Reynolds approved Mr. Sanchez' request for an 11:00 a.m. meeting on
September 13, 1985. That same day, Lt. Glover informed Ms. Lapadula
that the scheduled 11:00 a.m. meeting for the following day had been
cancelled and rescheduled to 1:30 p.m. Ms. Lapadula requested that the
meeting be changed to 12:30 p.m. and her request was granted. According
to Ms. Lapadula, Lt. Glover or Sgt. Bratcher informed her that there had
been a change in policy and no more morning meetings, which were
scheduled prior to 11:30 a.m., would be approved. This morning
restriction was imposed by Respondent because of applicant processing
and such restriction has been adhered to by the Local. Mr. Sanchez then
called Lt. Glover and discussed the change in policy. Lt. Glover stated
that he would check into the matter and return Mr. Sanchez' phone call.
Not hearing from Lt. Glover, Mr. Sanchez again called Lt. Glover at 2:25
p.m. and was then informed that, pursuant to orders from Lt. Col.
Rankin, there would no longer be any morning meetings with Ms. Lapadula.
In addition, Lt. Glover told Mr. Sanchez that Captain Reynolds did not
recall making any arrangements relating to an 11:00 a.m. meeting for
September 13, 1985.
Prior to September 12, 1985, Ms. Lapadula's release was not dependent
on work load considerations. However, in practice, arrangements to
conduct union business were usually made around her work schedule, since
Supervisor Sturgis had advance notice of her meetings and ample time was
provided to secure a replacement whether at 10:00 a.m. or 11:00 a.m.
Prior to September 12, 1985, Ms. Lapadula had never been denied official
time and if she requested a meeting for a particular time, e.g., 10:00
a.m., she received it. Thus, prior to this time, it was always within
Ms. Lapadula's discretion when she would meet with Mr. Sanchez. After
September 12, 1985, and continuing to the present, Ms. Lapadula's and
Mr. Sanchez' representational meeting time was governed by the
restrictions imposed by Respondent. Ms. Lapadula has requested official
time at 10:00 a.m. to conduct various representational duties, primarily
with non-employee Union representative Sanchez since September 12, 1985.
She has been denied such request and been informed that she cannot
conduct official union business until 11:30 a.m.
Discussion and Conclusions
The General Counsel takes the position that the Respondent violated
Sections 7116(a)(1) and (5) of the Statute by virture of its actions in
(1) confiscating the Union's filing cabinet, (2) unilaterally changing
the manner in which non-employee Union representatives achieved access
to the MEPS facility and (3) unilaterally determining that all such
meetings involving the union president or other union representatives
should commence after 11:30 a.m.
In conncection with the Respondent's action in confiscating the
Union's filing cabinet, the General Counsel points out that while it was
owned by Respondent the Union's authorized use of the cabinet had
ripened into a condition of employment over which Respondent was
obligated to bargain prior to depriving the Union of the use of the
filing cabinet. According to the General Counsel, Ms. Lapadula's
original agreement to surrender the five drawer file was predicated on
the understanding that it would be replaced with a four drawer filing
cabinet, not four separate field lockers. Thus, in the absence of any
exigency, when Ms. Lapadula balked at switching her cabinet for the four
field lockers, Respondent was under an obligation to bargain over the
removal of the filing cabinet prior to unilaterally confiscating same.
With respect to the change in the manner that President Sanchez
gained access to MEPS facility, the General Counsel takes the position
that change in procedure occurred in July 1985 when he received Ms.
Ogley's letter. In support of his position the General Counsel relies
on the fact that prior to such time Lt. Col. Rankin issued no
instructions to her subordinate supervisors changing the past procedure
whereby access to the MEPS facility was arranged through such
subordinate supervisors and the fact that from January-July 1985, Mr.
Sanchez followed past practice without incident.
Finally the General Counsel takes the position that Respondent's
action in making the Union schedule all meetings subsequent to 11:30
a.m. constituted a unilateral change in the past practice of allowing
the union steward to schedule meetings at an earlier hour, provided that
she received permission from her supervisor who was responsible for
making sure that adequate female personnel were available to insure that
female recruits, etc., could be appropriately processed.
Finally the General Counsel takes the position that the three changes
concerned conditions of employment, the substance of which, the
Respondent was obligated to bargain over prior to instituting changes
therein. Having unilaterally changed such conditions of employment
without bargaining, it is the General Counsel position that the
Respondent violated Sections 7116(a)(1) and (5) of the Statute.
The Respondent on the other hand takes the position that inasmuch as
the change in the manner in which President Sanchez achieved access to
the MEPS facility occurred in January 1985, more than six months prior
to the filing of the charge based thereon, Section 7118(4)(A) mandates
that the instant complaint should be dismissed as being untimely.
Additionally, the Respondent takes the position that the mere change in
the management representative empowered to approve access to the MEPS
facility does not amount to a change in a condition of employment. In
support of this position Respondent points out that neither party can
dictate the others representative, and accordingly a mere change in
representative is not a unilateral change within the meaning of the
Statute which requires prior notice and bargaining.
With respect to the confiscation of the Union's files, Respondent
takes the position that the Union had acquiesced in the exchange and, in
any event, inasmuch as the dispute concerns what the parties had agreed
to, the matter should be resolved through the contract grievance
procedure. Additionally, the Respondent takes the position that the
impact was minimal and, since the matter was resolved after a short
period of time by giving the Union another five drawer filing cabinet,
it would not effect the policies of the Statute to give a remedial
order.
Finally, with respect to the hours wherein meetings could be
scheduled, Respondent denies that it instituted any change. According
to Respondent, each request for a meeting at a scheduled time is
considered on a case by case basis and there is no hard and fast rule
governing when meetings will be held. Moreover, and in any event,
inasmuch as Ms. Lapadula is not busy during the period 11:30 a.m. to
2:30 p.m. any impact upon the Union is minimal.
With respect to Case No. 8-CA-60005 involving the removal of the
Agency owned five drawer filing cabinet, I find, that under all the
circumstances present herein, Respondent's action in confiscating the
filing cabinet violated Sections 7116(a)(1) and (5) of the Statute.
Thus, the record reveals that the Union had used the filing cabinet,
with the knowledge and blessing of the Respondent, for some two years
prior to its removal. In such circumstances, I find that Union's use of
the five drawer filing cabinet had ripened into a condition of
employment which could not be changed by Respondent without prior notice
to the Union and bargaining thereon. U.S. Department of the Treasury,
Internal Revenue Service, New Orleans District, A/SLMR No. 1034;
Arkansas Army National Guard, 1 FLRA No. 877.
Although not specifically stated, Respondent's counsel does not
appear to take issue with the above conclusion. Rather, he takes the
position that the retrieval was based upon Ms. Lapadula's consent and,
in any event, in view of the "de minimis impact" upon the Union and
"timely rectification" no remedial order is warranted.
While it is true that Respondent's representatives did talk to Mas.
Lapadula and secure her consent to switch and/or remove her five drawer
filing cabinet, the record reveals that such consent was predicated upon
her understanding that she would receive a four drawer filing cabinet in
return. Thus, to the extent, that Respondent's representatives
testified that they merely told Ms. Lapadula she would receive four
drawer filing capacity, I find such statement was a deliberate attempt
to deceive Ms. Lapadula into believing that she would be receiving a
conventional four drawer filing cabinet rather than four separate field
storage files. /6/ Having mislead Ms. Lapadula, I find that Respondent
failed to bargain in good faith with her prior to achieving her consent,
and that its subsequent activity in unilaterally confiscating her filing
cabinet without further bargaining, after she became aware that she was
to receive four field storage lockers and voiced her objection thereto,
amounted to a unilateral change in a condition of employment in
violation of Sections 7116(a)(1) and (5) of the Statute.
Inasmuch as the use of the filing cabinet is a condition of
employment not falling within the purview of Section 7106(a) of the
Statute, Respondent was obligated to bargain over the decision to remove
the filing cabinet, not merely the manner of implementation and impact
on the employees. Accordingly, the degree of impact, is not a matter to
be considered. Department of Health and Human Services, Social Security
Administration, Baltimore, Maryland, 19 FLRA No. 123.
With respect to Respondent's final argument against a remedial order
which is based upon the fact that some eight days later Respondent
obtained a five drawer filing cabinet for the Union's use, I find, under
all the circumstances that a posting is in order. Thus, the record
shows, and I find, that Respondent deliberately mislead Ms. Lapadula in
the first instance, there was no exigency to justify the confiscation,
and the confiscation prevented the Union from utilizing its files.
Having played fast loose with the Union's files the Respondent demeaned
the Union in front of its constituency and committed a blatant violation
of the Statute. Accordingly, contrary to Respondent's contention, I
find that a cease and desist order as well as a posting is warranted.
With respect to Case No. 8-CA-50566 wherein it is alleged that
Respondent unilaterally change the manner in which Union President
Sanchez achieved access to the MEPS facility, as well as the time he or
Ms. Lapadula could hold meetings with employees, I find that the record
evidence supports the conclusion that Respondent did unilaterally change
such conditions of employment.
With respect to the change in the manner in which Mr. Sanchez
achieved access to the MEPS facility, the record evidence establishes
and I find that for many years Mr. Sanchez, as Union President, had
followed the practice of arranging access to the MEPS facility, for
purposes of meeting with employees and their respective supervisors,
through the Respondent's supervisors. This practice continued without
incident until January 15, 1985, when Lt. Col. Rankin, who had been
concerned about the presence of unauthorized people in the facility,
informed Mr. Sanchez that thereafter all permission for access to the
MEPS facility would be through her, Lt. Colonel Rankin, office. /7/
Despite the above instructions from Lt. Colonel Rankin, who
acknowledged that such instructions changed past practice, Mr. Sanchez
continued to make appointments to visit the MEPS facility through the
employee's various supervisors, who evidently had not been informed of
the change in past practice.
Mr. Sanchez's continued activities in the above respect did not come
to the attention of Lt. Colonel Rankin until early June, 1985, when she
noticed the presence of Mr. Sanchez at the Rodeo MEPS facility. Upon
discovering that he had not scheduled an appointment through her office,
she escorted Mr. Sanchez from the facility. On July 23, 1985, Mr.
Sanchez arrived several hours early for a scheduled appointment and
again was escorted from the facility. This latter incident prompted a
letter dated July 24, 1985 from Ms. Ogley who reiterated the January 15,
1985 instruction from Lt. Colonel Rankin to the effect that all requests
for access to the facility should be made through her, Lt. Colonel
Rankin's immediate office.
It is well established that parties may establish terms and
conditions of employment by past practice. Once established, a term and
condition of employment may not be unilaterally altered by either party.
A change in the mode of access to an agency's facility, without
bargaining with Union, has been found by the Authority to be a violation
of Section 7116(a)(1) and (5) of the Statute. Department of Defense,
Army and Air Force Exchange Service, Fort Eustis Exchange, Fort Eustis,
Virginia, 20 FIRA No. 32. Inasmuch as I find Department of Defense,
Army and Air Force Exchange, Fort Eustis Exchange, to be right on point
I normally would find a Section 7116(a)(1) and (5) violation. However,
I further find that inasmuch as the change in the manner of achieving
access to the MEPS facility by President Sanchez occurred on January 15,
1985, more than six months before the charging party filed its charge on
September 18, 1985, Section 7118(4)(A) of the Statute mandates
dismissal.
Contrary to the contention of the General Counsel I can not conclude
that since the instructions had not been conveyed to the subordinate
supervisors and that Mr. Sanchez had continued to follow the past
procedure with regard to achieving access through the subordinate
supervisors, the change in procedure actually took place on or occurred
July, 1985. Thus, I note that since Mr. Sanchez appears to be the only
non-employee union representative seeking access to the facility there
was no reason to believe that he would not follow the change in
procedure, hence no need to relay the change to subordinate supervisors.
Also, there was no showing that Lt. Colonel Rankin was aware of the
fact that Mr. Sanchez had been ignoring his instructions and was still
requesting access through subordinate supervisors. Thus, the record
indicates that when it became apparent that Mr. Sanchez was ignoring the
instructions, management then relayed the change in procedure to its
subordinate supervisors as evidenced by the testimony of Ms. Lapadula
that she had been informed by Mr. Sturgis that he no longer had
authority to grant access to Mr. Sanchez.
In view of the foregoing I shall recommend that this aspect of the
complaint be dismissed.
Turning now to the remaining issue of the complaint concerning the
alleged change in the time when union meetings may be held, I credit the
testimony of Ms. Lapadula and President Sanchez that they were informed
on or about September 12, 1985, that thereafter all union meetings would
have to be scheduled after 11:30 a.m. I further find based on the
record evidence and the testimony of Ms. Lapadula that prior to
September 12, 1985, there had never been any hard and fast rule with
respect to the time union meetings would be scheduled. Thus, according
to the credited testimony of Ms. Lapadula, union meetings were usually
held at any time Ms. Lapadula desired, subject only to obtaining
permission from her supervisor.
Inasmuch as this change in the time for scheduling union meetings was
made unilaterally by Respondent without affording the Union any prior
notice or the opportunity to bargain over the substance of the change, I
find that Respondent violated Sections 7116(a)(1) and (5) of the
Statute. Cf. Department of Health and Human Services, Social Security
Administration, supra. To the extent that Respondent argues that there
was little or no impact since Ms. Lapadula had at least three free hours
after 11:30 a.m., I find such argument to be without merit. As noted
above, the degree of impact is not to be considered when the Respondent
is under an obligation to bargain the substance of the change as opposed
to the manner of implementation and impact.
Having concluded that the Respondent violated Sections 7116(a)(1) and
(5) of the Statute by unilaterally changing the time when Union meetings
could be held and by removing the five drawer filing cabinet utilized by
the Union without prior notice and affording the Union the opportunity
to bargain over the substance of the changes, I recommend that the
Federal Labor Relations Authority issue the following order designed to
effectuate the purposes and policies of the Statute.
It is further recommended that the allegation concerning the change
in the mode of access by non-employee union representatives to the MEPS
facility be dismissed.
ORDER
Pursuant to Section 7118(a)(7)(A) of the Federal Service
Labor-Management Relations Statute, 5 USC Section 7118(a)(7)(A), and
Section 2423.29(b)(1) of the Rules and Regulations of the Federal Labor
Relations Authority, the Station, Los Angeles, California shall:
1. Cease and desist from:
(a) Failing or refusing to bargain in good faith with the
American Federation of Government Employees, Local 2866, AFL-CIO,
the exclusive bargaining representative, by changing the past
practice whereby non-employee officials are allowed to meet with
the Union shop steward, an employee, for representational
purposes, prior to 11:30 a.m.
(b) Failing or refusing to bargain in good faith with the
American Federation of Government Employees, Local 2866, AFL-CIO
the exclusive bargaining representative, by confiscating the
filing cabinet and confidential files of the Union.
(c) In any like or related manner interfering with,
restraining, or coercing our employees in the exercise of their
rights guaranteed by the Federal Service Labor-Management
Relations Statute.
2. Take the following affirmative action designed and found
necessary to effectuate the policies of the Statute:
(a) Restore the past practice whereby non-employee officials of
the Union are permitted to meet with the Union shop steward for
representative purposes prior to 11:30 a.m.
(b) Post at its Military Entrance Processing Station 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 of the Respondent and shall
be posted and maintained for sixty (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 ensure that such
notices are not altered, defaced, or covered by any other
material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region 8, Federal Labor
Relations Authority, in writing, within 30 days from the date of
this Order, as to what steps have been taken to comply herewith.
BURTON S. STERNBURG
Administrative Law Judge
Dated: July 9, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(*) Based on our reasoning set forth above, we will no longer follow
the approach in American Federation of Government Employees, AFL-CIO,
Council of Locals No. 214 and Department of the Air Force, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 19 FLRA No. 23
(1985), rev'd, AFGE, Council of Locals No. 214, and in similar cases.
(1) The first group of applicants are called "shippers" and the
second group of applicants are called "dep ins".
(2) There is a dispute as to the date of the transfer. Thus, while
Ms. Lapadula puts the date as October 11, 1985, Lt. Col. Rankin recalls
the date as being approximately 3 days after her October 8th
conversation with M. Lapadula, making it October 11, 1985. In any event
the Union was without access to its files for at least eight days.
(3) Mr. Sanchez acknowledges having a conversation with Lt. Col.
Rankin wherein she informed him that thereafter all requests for access
to the MEPS facility would be made through her office. However, he
interpreted her instructions to be applicable to only those requests
dealing with meetings on the Commander's level. According to Mr.
Sanchez whenever his business on the MEP's facility involved
supervisors, etc., below the Command Level, he would continue his past
practice of gaining access to the facility through such supervisors.
Ms. Ogley supports the testimony of Lt. Col. Rankin to the effect that
there was no discussion of any alternative manner in which Mr. Sanchez
could gain access to the facility. Further, according to Mr. Oprisko,
who met separately the next day with Mr. Sanchez, he repeated Lt. Col.
RankinS order to Mr. Sanchez, that permission for access to the MEPS
facility would be solely through the Commander's office. I credit Lt.
Col. Rankin's testimony that on January 15, 1985 she instructed and/or
informed Mr. Sanchez that all visits to the MEPS facility would have to
be approved by her office. I further credit her testimony that Mr.
Sanchez gave her no argument and appeared to accept the change in
procedure. Mr. Sanchez might well have misinterpreted such instruction
and believed that they only applied to meetings with Lt. Col. Rankin's
staff, hence no objection from him.
(4) Lt. Col. Rankin testified that in early June she observed Mr.
Sanchez in the Rodeo MEPS facility and since he had not scheduled an
appointment through her office she, Lt. Col. Rankin, escorted him from
the building.
(5) ARTICLE VI entitled UNION REPRESENTATIVES provides in pertinent
part as follows:
Section 2. When it is necessary for the steward to leave his
work station during working hours in the performance of his
steward's duties, he will be granted reasonable time to leave the
work area. The Union agrees that time granted in accordance with
the above will not be used for any matters connected with the
internal management and or operations of the Union and other
prohibited activities as specifically provided in the applicable
regulations, including those set forth in Federal Personnel Manual
Book. It is further agreed that appropriate business matters of
the Union concerning management or employee relations shall be
scheduled in advance as far as is practicable in order to not
interrupt planned work schedules.
a. Union officers, representatives and stewards prior to
leaving their assigned work site, shall obtain oral permission
from the appropriate supervisor. The supervisor shall be advised
by the steward as to the reason for leaving the area and the
approximate duration of his absence. The steward shall return to
his assigned work site and notify his supervisor.
b. When a Union representative or steward desires to discuss a
work related matter with an employee of a supervisor other than
his own, upon entering the other supervisor's work area, he shall
contact the supervisor and advise him of the reason for his
presence and the employee he desires to contact. Contact between
employee and Union representatives will normally take place in the
immediate vicinity of the employee's assigned work area or in a
space designated by the supervisor concerned.
(6) In reaching this conclusion I credit Ms. Lapadula's testimony
and, I find it hard to believe that Respondent's representatives would
not have described what they intended to substitute for the Union's five
drawer file unless they intended to deceive Ms. Lapadula. I think "four
drawer filing capacity" would be understood by most people to be a four
drawer filing cabinet, not four separate field storage files.
(7) As noted supra, I have credited the testimony of Lt. Colonel
Rankin with respect to the fact that the conversation did in fact occur
and the substance of the conversation.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY
AND IN
ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED
STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally change existing conditions of employment of
unit employees by confiscating the filing cabinet and confidential files
of the American Federation of Government Employees, Local 2866, AFL-CIO,
the exclusive representative of our employees, herein called the Union,
without first notifying the Union and providing it with an opportunity
to bargain concerning such changes.
WE WILL NOT make unilateral changes in conditions of employment by
changing the past practice whereby non-employee officials of the Union
are allowed to meet with the Union shop steward, an employee, for
representational purposes, prior to 11:30 a.m., without first notifying
the Union and affording it the opportunity to bargain on said changes.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured under the
Federal Service Labor-Management Relations Statute.
WE WILL restore the past practice whereby non-employee officials of
the Union are permitted to meet with the Union shop steward for
representational purposes prior to 11:30 a.m.
WE WILL notify the Union of any intended changes in the working
conditions of unit employees, including, but not limited to, the
appropriation of Union office equipment and the time of day non-employee
Union officials may hold representation meetings with unit employees,
and afford it the opportunity to bargain concerning said changes, as
required by the Federal Service Labor-Management Relations Statute.
. . . (Agency or Activity)
Dated: . . . By: . . . (signature)
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 8,
whose address is: 350 S. Figueroa Street, 10th Floor, Los Angeles, CA
90071 and whose telephone number is: (213) 688-3805).