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38 FLRA No. 22

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

AND

SOCIAL SECURITY ADMINISTRATION

FIELD OPERATIONS, REGION II

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

(Charging Party)

2-CA-80212

DECISION AND ORDER

November 15, 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 did not file an opposition to those exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of Federal Service Labor-Management Relations Statute (the Statute) by unilaterally changing working conditions when it terminated the practice of providing the president of Local 2608 of the Charging Party with two partitions and a self-correcting typewriter. The Judge found no violation of the Statute, and 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. For the following reasons, we find, contrary to the Judge, that the Respondent violated the Statute. We adopt the Judge's findings, conclusions and recommendations only to the extent consistent with this decision.

II. Background

As detailed more fully by the Judge, Pedro Romero is the president of Local 2608 of the Union. Local 2608 represents the Respondent's employees throughout Puerto Rico. Since 1986, Romero has been a full-time Union representative on official time.

All of the Respondent's offices in Puerto Rico are in Region II, Area VIII of its organization. Respondent's Aguadilla branch office, where Romero was employed until September or October 1987, is within the Mayaquez district of Area VIII. The branch office in Hato Rey, to which Romero transferred in 1987, is in the San Juan district, also part of Area VIII.

In 1984 or 1985, Romero obtained access to a self-correcting typewriter. In early 1987, when the Aguadilla branch office moved to a new building, the typewriter moved with it, and Romero continued to be its primary user.

In 1985 the branch manager of the Aguadilla office, Luz Perez, acquired four partitions from the manager of the Mayaquez district. As she only needed two of the partitions, Perez had the other two placed between Romero's union desk and the office photocopier on one side and the desk of another office employee on the other. According to Perez, she was told that the partitions were on loan; there is no indication that she told this to Romero. Thus, from early 1986 until the 1987 move of the Aguadilla office, Romero occupied an area that was enclosed by two partitions used to separate his Union office space from the rest of the facility. At least since the Aguadilla office relocation in 1987, Romero had a sign saying "UNION OFFICE" on the outside of one of the partitions.

Romero asked to be transferred to another branch office, and in September or October 1987, he moved to Hato Rey. Romero continued to spend all of his time on official time as Union representative for Local 2608. Upon moving, Romero asked the Hato Rey branch manager for partitions and a self-correcting typewriter. He was given a typewriter that was not self-correcting. His request was processed to the Region II level. He was told that neither the partitions nor the self-correcting typewriter would be provided.

III. Administrative Law Judge's Decision

The Judge found that when the Respondent provided the Union with access to a self-correcting typewriter and a means to insulate the Union "office," a condition of employment arose that could not be unilaterally withdrawn. However, he found that when Romero moved to an office in a different district at his request, the practices did not follow him. Therefore, as the obligation to provide the equipment did not extend to a new location where it had never been provided and where it was not currently available, the Judge recommended that the complaint be dismissed.

IV. Positions of the Parties

The General Counsel argued in its exceptions that the rights to the equipment were granted to Romero in his role as Union president, and that his transfer did nothing to affect that status. According to the General Counsel, the benefit of the practice ran to the Union, and should have followed Romero in his status as a Union official even though, as an employee, he had changed location.

The Respondent did not file exceptions or an opposition to the General Counsel's exceptions.

V. Analysis and Conclusions

The Judge found that providing the Union (1) access to a self-correcting typewriter and (2) a means to insulate the "Union office" to some degree from the main business of the branch offices were conditions of employment. He further found that these conditions of employment were established by past practice in the old and new Aguadilla branch offices.^(*) We agree that the use of this Agency equipment was a condition of employment, National Treasury Employees Union and Internal Revenue Service, Denver District, 24 FLRA 249, 252 (1986), and that its existence as a condition of employment was established by past practice. See Lowry Air Force Base, Denver, Colorado, 29 FLRA 566, 571 (1987). However, we do not agree with the Judge that the Respondent's obligation to provide the equipment ended when the Union president's work station was moved to Hato Rey, beyond the jurisdiction and geographic area of the Mayaquez District. Rather, we find that the condition of employment followed Romero as Union president, and his transfer did not end the obligation to continue to provide the equipment as long as his move was within the geographic area coextensive with his Union office.

Romero was president of Local 2608, which represents the Respondent's employees throughout Puerto Rico. Both the Mayaquez District, which contains the Aguadilla office, and the San Juan District, which includes Hato Rey, are within the area covered by Local 2608. Thus, Romero was the Union representative for all employees of the Local, both during his tenure at the Aguadilla branch office and later after he transferred to Hato Rey.

The Judge found that Romero was furnished the equipment as Union president while he was stationed at the Aguadilla office, and that although those decisions might have bound the management of the Mayaquez district, they did not bind the San Juan district, which includes Hato Rey. The Judge recognized that the obligation undertaken by the Respondent at the lower level was "binding on the Respondent at all levels[.]" ALJ Decision at 9. In his view, however, the extent of the obligation was to continue to provide the equipment in the Aguadilla office. Therefore, as the Respondent did not remove the equipment, but simply refused to make the equipment available at the new location "where it had never been provided before and where it was not currently available," the Judge found that there was no failure to meet the bargaining obligation. Id.

Contrary to the Judge, we find that the obligation to furnish those items continued after the transfer because the conditions of employment related to Romero in his status as Union representative, and, therefore, the Respondent was required to continue to provide them as long as Romero's work station was within the area of his jurisdiction as Union representative. In that regard, we note that, by agreement, the bargaining relationship between the Respondent and Local 2608 extended to the geographic limits of Local 2608's jurisdiction. We find the real issue in this case to be the geographic extent of the actual authority held by the manager of the Aguadilla branch office, rather than her authority to bind the Respondent at other levels of the Agency. Management at the Aguadilla office was the agent for the Respondent insofar as it provided facilities for the use of the Union president who was stationed there. We find that the Respondent was bound by the legal acts of its agent concerning matters involving the Union's interests within the geographic limit of Local 2608's jurisdiction. Cf. Great Lakes Program Service Center, Social Security Administration, Department of Health and Human Services, Chicago, Illinois, 9 FLRA 499, 508 (1980) (under appropriate circumstances, an agent may, through the exercise of apparent authority, assume the responsibility and liability of the principal).

There is no indication that the decisions to provide the equipment were restricted to the Aguadilla office and no such limitations on their use were conveyed to the Union. Indeed, the Judge found that there was sufficient knowledge at the Mayaquez district level to "make it arguable that the District acquiesced in and is bound by the practices." ALJ Decision at 9. This gives added weight to our conclusion that the Aguadilla branch office had authority to, and did, bind the organization at higher levels. We conclude that by providing Romero with the self-correcting typewriter and partitions, the Aguadilla office bound Respondent to continue to provide those items within the area represented by Local 2608.

It is immaterial whether officials at Hato Rey or their superiors at the San Juan district level participated in the decisions to provide the equipment to the Union president, or whether they even knew of those decisions. The Respondent has to deal with Union representatives at some level on various matters, and items such as those involved here are logically the responsibility of management at the level of the worksite where the Union official performs his representation duties. The Respondent cannot disavow responsibility for legal actions of its agents who were acting within their scope of authority.

The Judge suggested that the fact that Romero requested transfer "is potentially significant" because if the Respondent had transferred him for its own purposes and refused to provide the equipment at the new location it would be arguable that it had unlawfully done indirectly what it could not do directly. ALJ Decision at 8-9. We disagree. In our view, it is irrelevant whether Romero was transferred at his request or because of the needs of the Respondent. The Respondent provided Romero with equipment as Union president, and it cannot, without first fulfilling its duty to bargain, take that equipment away unilaterally as long as Romero continues to use it in his capacity as Union president.

As we have concluded that the Respondent had an obligation to continue to furnish the equipment at issue, its failure to do so violated section 7116(a)(1) and (5) of the Statute.

VI. Order

Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, we order that Department of Health and Human Services, Social Security Administration and Social Security Administration, Field Operations, Region II shall:

1. Cease and desist from:

(a) Discontinuing the practice of providing to American Federation of Government Employees, AFL-CIO, Local 2608, the exclusive representative of a unit of its employees, (1) access to a self-correcting typewriter and (2) a means to insulate the Union office area from the main business floors of the branch office where the Union representative is stationed, without first giving the Union the opportunity to bargain over such a change in 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 Federal Service Labor-Management Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Reinstate the practice of providing to American Federation of Government Employees, AFL-CIO, Local 2608 (1) access to a self-correcting typewriter and (2) a means to insulate the Union office area from the main business floors of the branch office where the Union representative is stationed.

(b) Post at its offices in the Mayaquez and San Juan, Puerto Rico Districts, where bargaining unit employees represented by American Federation of Government Employees, AFL-CIO, Local 2608 are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director, Social Security Administration Field Operations, Region II, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including 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 II, Federal Labor Relations Authority, 26 Federal Plaza, Room 3700, New York, New York 10278, 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 HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT discontinue the practice of providing to American Federation of Government Employees, AFL-CIO, Local 2608, the exclusive representative of a unit of our employees, (1) access to a self-correcting typewriter and (2) a means to insulate the Union office area from the main business floors of the branch office where the Union representative is stationed, without first giving the Union the opportunity to bargain over such a change in 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 Statute.

WE WILL reinstate the practice of providing to American Federation of Government Employees, AFL-CIO, Local 2608 (1) access to a self-correcting typewriter and (2) a means to insulate the Union office area from the main business floors of the branch office where the Union representative is stationed.

_____________________
(Activity)

Dated:________ By:__________________________

(Signature) (Title)

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 II, whose address is: Room 3700, 26 Federal Plaza, New York, New York 10278, and whose telephone number is: (212) 264-4934.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ We do not adopt the Judge's statement that past practices "ripened" into conditions of employment. ALJ Decision at 8. As we stated in Letterkenny Army Depot, 34 FLRA 606, 611 (1990),

"Conditions of employment . . . may be established . . . 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."

See also, Department of the Treasury, Internal Revenue Service (Washington, D.C.); and Internal Revenue Service Hartford District (Hartford, Connecticut), 27 FLRA 322, 324 (1987).

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