14:0475(78)CA - Defense Logistics Agency, Defense Depot Tracy, Tracy, CA and Laborers International Union Local 1276 -- 1984 FLRAdec CA
[ v14 p475 ]
14:0475(78)CA
The decision of the Authority follows:
14 FLRA No. 78
DEFENSE LOGISTICS AGENCY
DEFENSE DEPOT TRACY
TRACY, CALIFORNIA
Respondent
and
LABORERS INTERNATIONAL UNION
LOCAL 1276, AFL-CIO
Charging Party
Case No. 9-CA-401
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. Exceptions to the Judge's Decision were filed by
the General Counsel and the Respondent, and the General Counsel filed an
opposition to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record in this case, the Authority
hereby adopts the Judge's findings, conclusions and recommendations, as
modified herein.
As found by the Judge, Respondent's supervisor held a meeting on
March 12, 1980, with five or six unit employees under his supervision
during which he announced a change in the established sick leave call-in
procedure. The General Counsel's complaint alleged that Respondent
violated section 7116(a)(1), (5) and (8) of the Statute by changing a
past practice with regard to sick leave call-in without giving notice
and an opportunity to bargain to the Charging Party, by holding a formal
discussion with unit employees without providing an opportunity for the
employees' exclusive representative to be present, and by bargaining
directly with unit employees concerning their conditions of employment
in derogation of the status of the exclusive representative.
In agreement with the Judge, the Authority concludes that the
Respondent violated section 7116(a)(1) and (5) of the Statute when,
without prior notice to the Union, it unilaterally changed its past
practice with regard to sick leave call-in procedures. Thus, the record
supports the Judge's finding that a past practice had been established
of not requiring employees to call in again on the second day of sick
leave, and that the Respondent unilaterally changed this practice when
its supervisors began enforcing a new call-in procedure in March 1980.
/1/
The Authority will next consider whether the meeting in question held
to announce what amounted to a unilateral change in personnel policies
and practices in violation of the Statute also constituted separate
violations of the Statute because it was a formal discussion within the
meaning of section 7114(a)(2)(A) of the Statute /2/ and/or because it
evidenced an attempt to bypass the exclusive representative and deal
directly with unit employees. The Judge found that the meeting was a
formal discussion within the meaning of section 7114(a)(2)(A) of the
Statute and concluded that Respondent's failure to give the Union prior
notice and an opportunity to be represented constituted a separate
violation of section 7116(a)(1) and (8) of the Statute. Additionally,
the Judge concluded that this meeting constituted a bypass of the Union
in derogation of its status as the exclusive representative of the
bargaining unit employees, a further separate violation of section
7116(a)(1) and (5) of the Statute. The Authority disagrees on both
points.
With respect to the formal discussion issue, the Judge found that the
Union was entitled to attend based on the fact that the substance of the
supervisor's announcement concerned a condition of employment. However,
under section 7114(a)(2)(A) of the Statute, the fact that a discussion
concerns a "grievance or any personnel policy or practices or other
general condition of employment" is not the sole determining factor of
whether an exclusive representative shall be given the opportunity to be
represented. The discussion must also be formal in nature.
In Department of Health and Human Services, Social Security
Administration, Bureau of Field Operations, San Francisco, California,
10 FLRA 115 (1982), the Authority dismissed a complaint based on the
General Counsel's failure to meet the burden of proving that the
meetings in question were formal discussions within the meaning of
section 7114(a)(2)(A) of the Statute. In so doing, the Authority noted
a number of factors relevant to a determination of whether meetings are
in fact "formal" in nature. These are: (1) whether the individual who
held the discussions is merely a first-level supervisor or is higher in
the management hierarchy; (2) whether any other management
representatives attended; (3) where the individual meetings took place
(i.e., in the supervisor's office, at each employee's desk, or
elsewhere); (4) how long the meetings lasted; (5) how the meetings
were called (i.e., with formal advance written notice or more
spontaneously and informally); (6) whether a formal agenda was
established for the meetings; (7) whether each employee's attendance
was mandatory; and (8) the manner in which the meetings were conducted
(i.e., whether the employee's identity and comments were noted or
transcribed). The foregoing list was not intended to be exhaustive.
Other factors may be identified and applied as appropriate in a
particular case. Thus, in determining formality, the Authority will
consider the totality of the facts and circumstances presented.
Upon consideration of the record herein, the Authority concludes that
the March 12, 1980 meeting was not "formal" in nature. In this regard,
the Authority notes that the meeting in question was called and
conducted by a first line supervisor on his own initiative, with no
other management representative being present, to instruct his several
immediate subordinates on the Agency leave policy. The meeting was not
scheduled in advance. The meeting was held in the supervisor's office
adjacent to the employees' work location, lasted no more than 10
minutes, and had no formal agenda. The meeting was, in essence and
effect, a meeting held to announce what amounted to a unilateral change
in personnel policies and practices which change was itself in violation
of the Statute. Accordingly, the Authority finds that the meeting was
not a formal discussion within the meaning of section 7114(a)(2)(A) of
the Statute and that the Respondent's failure to provide the Union with
an opportunity to be present was not violative of section 7116(a)(1) and
(8) of the Statute, and the Judge's finding to the contrary must be set
aside.
With respect to the issue of alleged bypass, the Authority notes that
to establish a bypass, it is incumbent on the General Counsel to prove
that the Respondent attempted to deal directly with employees over
conditions of employment. As the record fails to establish that the
supervisor either attempted to negotiate or to otherwise deal directly
with employees concerning the change in the sick leave call-in practice
at the meeting on March 12, 1980, the Authority concludes that the
General Counsel has failed to establish that an unlawful bypass
occurred. Accordingly, the Judge's finding of a violation in this
regard must be set aside. /3/
With respect to a remedy for the violation found herein, the General
Counsel excepted to the Judge's Recommended Order in this regard insofar
as it only required the Respondent to negotiate with respect to the
impact and implementation of the decision to change the established sick
leave call-in practice. The General Counsel seeks an order requiring
the Respondent to reinstitute the preexisting policy and to bargain with
the Union concerning the decision itself. Respondent, in its
exceptions, argues that such an order would be improper based on the
parties' subsequent agreement covering sick leave call-in procedures.
Noting particularly that Respondent's decision itself concerned a
unilateral change of a condition of employment and that it has not been
contended nor does it otherwise appear that the matter was outside the
duty to bargain, the Authority concludes that the remedy sought by the
General Counsel is appropriate, subject to any subsequent agreement
which may have been reached by the parties concerning the change. Thus,
the Authority has modified the Judge's Order accordingly. See Army and
Air Force Exchange Service (AAFES), Fort Carson, Colorado, 10 FLRA 235
(1982).
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the Defense Logistics Agency, Defense Depot
Tracy, Tracy, California shall:
1. Cease and desist from:
(a) Unilaterally instituting changes with respect to established sick
leave call-in practices without providing prior notice to, and, upon
request, bargaining with the Laborers International Union, Local 1276,
AFL-CIO, the exclusive representative of its employees.
(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) Reinstitute the practice in effect prior to March 1980 of
requiring employees to call-in only on the first day they are on sick
leave unless such practice has already been modified or adopted in a
manner consistent with the Statute.
(b) Make whole any employee adversely affected by the unlawful change
in call-in practice for that period of time preceding either the
effectuation of any subsequent agreement by the parties with regard to
such practice, or the reinstitution of the practice pursuant to this
Order, whichever occurs first.
(c) Notify the Laborers International Union, Local 1276, AFL-CIO, of
any intended change in established sick leave call-in practices and,
upon request, bargain in good faith with respect to such intended
change.
(d) Post at its Defense Depot Tracy, Tracy, California 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 Depot Director, or his designee, 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 steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, 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.
IT IS FURTHER ORDERED that the other allegations of the complaint in
Case No. 9-CA-401 be, and they hereby are, dismissed.
Issued, Washington, D.C., May 10, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, 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 unilaterally institute changes with respect to
established sick leave call-in practices without providing prior notice
to, and, upon request, bargaining with the Laborers International Union,
Local 1276, AFL-CIO, the exclusive representative of our employees.
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 reinstitute the practice in effect prior to March 1980 of
requiring employees to call-in only on the first day they are on sick
leave unless such practice has already been modified or adopted in a
manner consistent with the Statute.
WE WILL make whole any employee adversely affected by the unlawful
change in sick leave call-in practice for that period of time preceding
either the effectuation of any subsequent agreement by the parties with
regard to such practice, or the reinstitution of the practice pursuant
to this Notice, whichever occurs first.
WE WILL notify the Laborers International Union, Local 1276, AFL-CIO,
of any intended change in established sick leave call-in practices and,
upon request, bargain in good faith with respect to such intended
change.
(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 IX, Federal Labor Relations Authority, whose address
is: 530 Bush Street, Room 542, San Francisco, California 94108, and
whose telephone number is: (415) 556-8106.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 9-CA-401
Richard H. Kaake, Esq.
For the Respondent
Stephanie Arthur, Esq.
For the General Counsel
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
Statement of the Case
This case arose pursuant to the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq., hereinafter
called the Statute, as a result of an unfair labor practice charge filed
on March 25, 1980. The complaint, issued on June 25, 1980, alleged that
Defense Logistics Agency, Defense Depot Tracy, Tracy, California,
hereinafter referred to as the Depot or Respondent, violated section
7116(a)(1), (5) and (8) of the Statute by changing a past practice with
regard to sick leave call-in without giving notice and an opportunity to
bargain to Laborers International Union, Local 1276, AFL-CIO,
hereinafter called the Union, and by holding a formal discussion with
unit employees without providing an opportunity for the employees
exclusive representative to be present.
A hearing was held in this matter before the undersigned in San
Francisco, California, on August 14, 1980. All parties were represented
by counsel and afforded full opportunity to be heard, adduce relevant
evidence, and examine and cross-examine witnesses. All parties filed
briefs which have been duly considered.
Based upon the entire record herein, including my observation of the
witnesses and their demeanor, the exhibits and other relevant evidence
adduced at the hearing, I make the following findings of fact,
conclusions of law, and Order.
Findings of Fact
At all times material herein, a collective bargaining agreement has
been in effect between the Union and Respondent, covering a unit of all
non-supervisory Wage Grade employees at the Tracy Depot.
On or about March 12, 1980, supervisor Richard McCormick held a
meeting with 5 or 6 unit employees under his supervision in Warehouse 21
during which he announced a change in the established sick leave call-in
practice. According to McCormick, he was having a problem with
employees requesting all kinds of leave and, about that time, he had a
particular problem with an employee who had called in sick but had
failed to call back the next day although instructed to do so by
McCormick. When the employee explained that he had not understood
McCormick's instruction to call back, McCormick decided to call his
employees together and instruct them on leave policy. McCormick
testified that he "had different employees working for me applying for
leave in different ways," and that, "it seemed as though they did not
understand what the Depot policy actually was".
During the course of the meeting, McCormick instructed the employees
on how to obtain annual, advanced sick, emergency annual and sick leave.
McCormick did not give the Union any advance notice of this meeting.
However, Tom Blas, who was under McCormick's supervision and was the
union shop steward for Warehouse 21 was present. McCormick told the
employees that he was "reaffirming Depot policy on calling in for leave"
and employees would have to call back and request leave each day of
their absence or be subject to disciplinary action. McCormick added
that this was not changing anything. Upon finishing his instructions
some of the employees questioned McCormick concerning the change in
call-in policy and indicated that they should only have to call in the
first day as they had done in the past. According to McCormick, an
employee Dennis Friend stated that the Depot policy had always been that
way. One employee, Debra Shrenk commented "I thought that we had three
days when we called in." Union steward Blas specifically asked McCormick
if he was changing Depot policy on calling in and McCormick replied that
he was not. Steward Blas testified that during the three years he was
employed at the Depot, until McCormick announced this so-called Depot
policy on March 12, 1980, it was his understanding that employees were
required to call-in only on the first day of sick leave and that, in
fact, was the practice he had followed.
During this same period of time, Bill Arnolfo, a warehouseman in
Warehouse 10, Stock Readiness Branch and then a union steward, began
hearing rumors regarding a change in the sick leave call-in procedure
and, about the middle of March, was approached by an employee who wanted
to know why he was being required to call in for sick leave everyday.
Arnolfo testified that, he understood the sick leave call-in procedure
was to call the first day of absence-- indeed, that this was the
procedure that management had told him to follow and which he had been
following since he first came to work at the Depot in 1972.
Steward Arnolfo then arranged to see the Branch Chief, Mr. Marino
about this change in procedure. According to Arnolfo, Mr. Marino
advised him that in accordance with a Supervisor's "By-Line" dated
August or September of 1979, employees were now required to call in each
day of their absence. Arnolfo told Marino that he did not agree with
this change, but that if that was what was going to be enforced, he
thought it only fair that the new policy be explained to the employees.
Also, Arnolfo told Marino, he wanted to avoid the situation where an
employee relying on his understanding of the past practice, failed to
call-in the second day and was placed on AWOL.
Thereafter, Marino's foremen Alvarez and Martinez each met with their
own group of unit employees to inform them of the change in sick leave
call-in procedure. Arnolfo was employed in Alvarez's group and attended
the meeting. Alvarez merely read the Supervisor's "By-Line" to the
employees and told them that there were going to be new requirements
with regard to calling in for sick leave.
Both during and after the meeting, employees complained about the new
procedure. When asked, Arnolfo told one employee that management had
plans to put employees who did not comply with the call-in procedure on
AWOL status and advised the employee to do as he was told. Further,
Arnolfo testified that he overheard a supervisor tell an employee over
the telephone that he would have to call back the next day or be put on
AWOL status.
The Union learned of the change in the Depot sick leave call in
practice when Union Steward Tom Blas reported to Chief Steward Joe
Delozier the policy which had been announced at McCormick's meeting.
The call-in procedure prior to March 1980, according to employee
Euleta McCurry, was told her when she was first employed at the Depot
approximately thirteen years before, she was advised at that time by her
supervisor that she was only required to call to report her absence on
the first day, although after three days she would have to bring a note
from her doctor. She stated that this was the procedure she had
followed during her entire employment at the Depot, /4/ and she has yet
to be told to do otherwise.
Steward Arnolfo, a warehouseman in the Stock Readiness Branch,
Warehouse 10, and currently Chief Shop Steward, recalls that when he
first began work at the Depot in 1972, he was advised by his supervisor
that if he were sick he was expected to call in the first day of absence
after which he would be carried on sick leave. Arnolfo also testified
that this was the identical procedure he had followed when he worked in
the Receiving Division, Shipping, Commissary Store, Bin Operations, and
until March, 1980, in Stock Readiness. Steward Tom Blas testified that
he had followed the first day call-in practice under several different
supervisors during the three years he worked at the Depot. Joe
Delozier, until shortly before the hearing, employed as a packer and
Chief Shop Steward at the Depot, testified that he had followed the
first day only call-in procedure in three different warehouses and under
many different supervisors from the time he began work at the Depot in
1974 until he left.
General Equipment Inspector Foreman, Leonard P. Lester, Sr. testified
that he understood the policy to be "everyday they are off they are
supposed to call-in." Lester states that he had applied this policy
since shortly after July 1979 when he became a supervisor.
Lloyd Kinser, a supervisor in Bin Packing, states that he has been
applying the policy as set out in the August 1979, "By-Line" and told
his employees when they called for sick leave "if they are not going to
be in tomorrow, would you please give me a call." The "By-Line"
announcement previously referred to read as follows:
With a true emergency or illness, do not assume your supervisor
can read your mind. A brief phone call can often result in
understanding and approval of your problem. Communication with
your supervisor, or his designated representative in the absence
of the supervisor, on each and every day of absence is a
prerequisite to leave approval, unless your supervisor has
approved subsequent days of absence.
Branch Chief, Manual Carrillo, Jr., stated that the current policy of
the Depot was:
"through an agreement with the supervisor, when they call for
the duration of the leave, it may be one day, it may be several,
it depends on the supervisor and the individual and, if more time
is granted on the first day then he does not have to call the
second day."
Mr. Carrillo also stated his interpretation of the parties negotiated
agreement concerning call-in procedures. /5/ Carrillo stated that his
interpretation of Article X as follows:
"the first four hours on the day in question would be the first
day. Once the leave is approved for that day it is only for that
day and, subsequent days become the next four hours for the next
leave duration because it has been approved for the one day only.
The next day would begin another day, another four hours."
Finally, Respondent presented testimony from two employees, Henry E.
Simmons and Dennis L. Friend that neither felt the requirement that an
employee call-in each day of sick leave was a change in past policy.
Conclusions
A. Procedural Matters
Respondent moved to dismiss the complaint in this matter as being
untimely filed and as involving a matter of contract interpretation
which should be resolved under procedures agreed to by the parties in
their collective bargaining agreement.
First, Respondent alleges that the Authority lacks jurisdiction in
the matter because the complaint is based on an allegation of an unfair
labor practice which occurred more than six months before the filing of
the charge with the Authority, and pursuant to provisions of 5 U.S.C.
7118(a)(4)(A), such issues may not be raised as an unfair labor
practice. /6/ At the hearing, Respondent contended that on or around
March 6, 1980 it merely sought to enforce a practice or well publicized
policy on sick leave call-in which was clearly acknowledged in Agency
publications around August 1979 and that the publication predated the
charge filed on March 25, 1980, by more than six months. In essence,
Respondent contends that the action about which the Union complains
occurred in August 1979.
In this respect, Respondent urges that there was no failure to
perform a duty owed or concealment as provided under Sec. 7118(a)(4)(A)
since the agency publication Depot Personnel Message was distributed to
all employees and to the Union about August 24, 1979.
The Union's Chief Steward in August 1979, Joe Delozier denied
receiving a copy of the Depot Personnel Message and did not recall
seeing the official Depot publication stating the Agency's position on
sick leave call-in. Further, none of the employees who testified
indicated that any notification was given to the Union before the
publication was distributed or before the new policy was implemented.
More importantly, there is no indication from the record that
Respondent's supervisors were enforcing the new call-in policy on other
than a sporadic basis until sometime around March 1980 at which time
employee began to realize that a change in call-in procedures was being
enforced by certain supervisors. Finally, the so-called policy was not
as obvious as Respondent maintains. It is noted in this regard that the
policy was not contained in the Depot article entitled "Sick Leave and
You" under which an employee or the Union would likely look, but was in
an article entitled "AWOL is a Curable Disease." An article, in fact,
unlikely to be read by any employee who had been consistently following
the established practice of calling in on the first day of illness.
Secondly, Respondent now maintains, in its brief, that the dispute
should be referred under the negotiated agreement for hearing under the
applicable grievance and arbitration machinery. If this matter involved
a question of interpretation involving sick leave call-in under the
parties collective bargaining agreement, Respondent would be correct.
/7/ Unfortunately, it does not. Respondent raised the issue that a
matter of contract interpretation was involved for the first time, at
the hearing. While it has long been recognized that deferral to the
negotiated grievance machinery is desirable, the dispute must be over a
varying contractual interpretation of the parties. The dispute in this
matter involves not the negotiated procedures but an alleged past
practice establishing employees rights to call-in only on the first day
of sick leave. A determination of whether there was a unilateral change
of past practices which is involved in this matter does not require an
interpretation of the parties agreement. Further, the call-in procedure
which Respondent unilaterally set is not covered by the agreement
between parties. Moreover, earlier, neither Respondent nor the Union
contended that any dispute existed concerning any term of the collective
bargaining agreement. Accordingly, for the reasons stated above,
Respondent's Motion to Dismiss is denied.
B. Past Practice
That parties may establish terms and conditions of employment by
practice, or other forms of tactic or informal agreement, and these like
other established terms and conditions of employment may not be altered
by either party in the absence of agreement or impasse following good
faith bargaining, is well established. Department of the Navy, Naval
Underwater Systems Center, Newport Naval Base, 3 FLRA No. 64 (1980).
The record in this matter supports a finding that a past practice of
requiring employees to call-in only on the first day of illness was
established at the Depot.
I agree with the General Counsel that sick-leave call in is a working
condition per se. Furthermore, the announced change in procedure
carries with it the potential for disciplinary action, AWOL for not
calling in, and most certainly is a matter involving employees
conditions of employment. It is, therefore found that Respondent's
unilaterally imposing a requirement that employees call-in every day of
sick leave or otherwise face disciplinary action impacted on their work
conditions and any changes in the procedure constituted a change in
conditions of employment which were subject to bargaining.
It is equally well settled that an employer may not unilaterally
change working conditions of unit employees without first notifying the
collective bargaining representative of the affected employees and upon
request, bargaining with it concerning the proposed changes. Department
of Treasury, Internal Revenue Service, Jacksonville District, 3 FLRA No.
103 (July 1980). This obligation inures to any condition of employment,
including those established through past practice. Department of the
Treasury, U.S. Customs, Region I, Boston, Massachusetts, 1 FLRA No. 49
(1979).
The General Counsel established by a preponderance of the evidence
that a past practice of requiring employees to call-in only on the first
day of sick leave existed at the Depot prior to March 1980. However,
Respondent denies that a change occurred and claims that it was merely
reaffirming an established policy on sick leave call-in. But before
Respondent can maintain that position, it must show the existence of a
pre-established policy. See Social Security Administration, Tulsa
District Office, Tulsa, Oklahoma, 1 FLRA No. 67 (1979). The evidence
relied on by Respondent is scant. Past practices generally include
working conditions established through practice and followed by both
parties to a collective bargaining agreement. The record supports a
finding that Depot employees called-in only on the first day of illness,
for many years, as instructed by various supervisors. While the
"By-Line" of August 24 warned employees that they must call in every
day, there is little evidence that Respondent vigorously pursued this
stated policy. The evidence shows that neither the Union or employees
were aware of this new policy until employees became upset when told
they had to call-in, almost six-months after the policy was allegedly
implemented. The record further disclosed that while some supervisors
were aware of the policy announced in the "By-Line" that there was no
vigorous effort on their part to implement that policy until well into
1980. Respondent's policy was indeed a well kept secret until sometime
around March 1980 when efforts were made through supervisors meetings
with employees to explain the exact nature of the new sick leave call-in
policy. In these circumstances, it is found that a past practice of
allowing employees to call-in only on the first day of sick leave
existed at the Depot as late as March 1980 and that a change in that
procedure was implemented about that time requiring employees to call-in
on each day of sick leave or face disciplinary action constituting a
change in terms and conditions of employment as set out in section
7103(a)(12) of the Statute, and is violative of section 7116(a)(5) and
(1) of the Statute.
C. Formal Meeting
The General Counsel contends that the March 12, 1980 meeting between
Supervisor McCormick and the unit employees supervised by him
constituted a formal discussion with unit employees and is a breach of
its obligation under section 7114(a)(2)(A) of the Statute since it did
not give the Union notice and an opportunity to attend the meeting and,
therefore, was in violation of section 7116(a)(1) and (8) of the
Statute. /8/
A review of the legislative history of the Statute 124 Cong.Rec.H
9650, daily ed. Sept. 13, 1978 revealed the following:
Section 7114(a)(3)(A) specifically provides that an exclusive
representative shall be given the opportunity to appear at formal
discussion between agency representatives and employees. This
subsection must be read in conjunction with subsection 7114(1)(1),
requiring that a labor organization which has been accorded
exclusive recognition is the exclusive representative for
employees in its bargaining unit, and with subsection 7116(a)(8)
which makes it an unfair labor practice for an agency to fail to
comply with any provision of title VII, including the exclusivity
rights of labor organizations with exclusive recognition. The
compromise inserts the word "formal" before discussions merely in
order to make clear that this subsection does not require that an
exclusive representative be present during highly personal,
informal meetings such as counseling sessions regarding
performance. Of course, nothing in this section bars an agency
and an exclusive representative from negotiating an agreement
providing for a greater role for the representative than that
minimally mandated by Title VII. Moreover, nothing in this
section authorizes agency management to bypass the rights of the
exclusive representative and engage in direct communications with
unit members.
Under Section 10(e) of the Executive Order, as amended it was
mandated that a Union, which is the exclusive bargaining representative
be afforded the opportunity to be represented at formal discussions
between management and employees concerning personnel policies and
practices, or other matters affecting general working conditions of unit
employees. Department of Health, Education and Welfare, Social Security
Administration, BRSI, Northeastern Program Service Center, 1 FLRA No. 88
(1979). Furthermore, in determining whether a meeting may be
characterized as a "formal discussion", the Assistant Secretary
established distinctions between meetings held for instructional
purposes and those dealing with personnel policies and practices, and
matters affecting general working conditions. See, Department of
Health, Education and Welfare, Social Security Administration, BRSI,
Northeastern Program Center, supra; Department of the Treasury,
Internal Revenue Service, Chicago District, Chicago, Illinois, 8 ASLMR
1046, A/SLMR No. 120 (1978). While the Order is not binding in Statute
matters it is most certainly a guide. Under the Order a distinction was
drawn between whether the meeting was convened to disseminate
information concerning conditions of employment or to announce a change
in employment conditions. If held to announce a change the meeting was
characterized as a formal discussion.
In this matter, Respondent claims that the March 12, 1980 meeting was
called by McCormick only to instruct employees on leave policy.
However, if the subject matter under discussion involves personnel
policies, practices or conditions of employment, and a change in
existing policy with respect to sick leave call-in was announced and
that change is of an existing condition of employment the Union is
entitled to attend. It is noted, that during this period at least one
similar meeting was called by a supervisor working under Branch Chief
Marino at the request of Chief Steward Arnolfo. Arnolfo was also
present at this meeting. However, the meeting called by McCormick was
at his own behest and no connection was established between this meeting
and those called by Branch Chief Marino at the Chief Steward Arnolfo's
request. Further, the Union was neither notified nor given an
opportunity to be present at the March 12 meeting. In the
circumstances, particularly since the meeting involved what Respondent
termed the reaffirmation of an existing sick leave policy, which is a
condition of employment, it is found that the meeting was a formal
discussion within the meaning of the Statute and the failure to notify
the Union or to allow the Union to be present constituted a violation of
Section 7116(a)(1) and (8) of the Statute.
In addition, the matter raises the question as to whether such a
meeting with employees to announce a change in terms and conditions of
employment constitutes a by-pass of the exclusive representative.
It is also settled that an employer may not go directly to employees
to discuss or announce changes in working conditions without first
bargaining with the Union; such conduct by an employer constitutes a
by-pass of the exclusive representative and derogates its status in the
exclusive representation of unit employees and is violative of the
Statute. See United States Air Force, Air Force Logistics Command,
Aerospace Guidance and Meteorology Center Newark, Ohio, 4 FLRA No. 70
(1980); Internal Revenue Service, Washington, D.C., 4 FLRA No. 68
(1980).
As set out above, Supervisor McCormick called the March 12, 1980,
meeting of employees under his supervision without notifying the Union
and unilaterally announced a change in the established sick leave
call-in practice. Although union steward Blas was present at the
meeting he was not given notification of the meeting in a normal manner
but, was in attendance only because he was an employee working under the
supervision of McCormick. The calling of such a meeting without
appropriate notice to the exclusive representative is an act in
derogation of the bargaining representatives rights to represent
employees and in violation of section 7116(a)(1) and (5) of the Statute.
Based on the foregoing, it is found that Respondent violated Section
7116(a)(1) and (5) by unilaterally changing a past practice without
notification to or bargaining with the exclusive representative of its
warehouse employees; violated section 7116(a)(1) and (5) by dealing
directly with unit employees with respect to personnel policies and
practices or other matters affecting the general working conditions of
unit employees; and violated section 7116(a)(1) and (8) by holding a
formal discussion without notifying and affording the Union as exclusive
representative of the employees involved to be present.
Having found and concluded that Respondent has violated section
7116(a)(1), (5) and (8) of the Statute, I recommend that the Authority
issue the following Order: /9/
ORDER
Pursuant to 5 U.S.C. 7118(a)(7) and Section 2423.26 of the Final
Rules and Regulations, 45 Fed.Reg. 3482, 3510 (1980), it is hereby
ORDERED that the Defense Logistics Agency Defense Depot Tracy, Tracy,
California shall:
1. Cease and desist from:
(a) Unilaterally instituting changes with respect to sick leave
call-in practices without providing notice to, and upon request,
meeting and negotiating with the Laborers International Union,
Local 1276, AFL-CIO, the exclusive representative of its
employees, or any other exclusive representative.
(b) Dealing directly with unit employees at the Defense Depot
Tracy facility represented by the Laborers International Union,
Local 1276, AFL-CIO with respect to personnel policies and
practices or other matters affecting the general working
conditions of employees at that facility.
(c) Conducting formal discussions between management and unit
employees, or their representatives, concerning personnel policies
and practices, or other matters affecting general working
conditions of employees in the unit, without notifying and
affording Laborers International Union, Local 1276, AFL-CIO, the
opportunity to be represented at formal discussions between
management and employees, as their representative, concerning
personnel policies and practices, or other matters affecting
general working conditions of employees in the unit.
(d) In any like or related manner interfering with, restraining
or coercing its employees of their rights assured by the Statute.
2. Take the following affirmative action:
(a) Upon request, meet and negotiate only with the Laborers
International Union, Local 1276, AFL-CIO, the exclusive
representative of its employees, with regard to personnel policies
and practices, or other matters affecting the general working
conditions of employees at the Defense Depot Tracy, Tracy,
California.
(b) Notify the Laborers International Union, Local 1276,
AFL-CIO, of and afford it the opportunity to be represented at
formal discussions between management and unit employees, as their
representative, concerning personnel policies and practices, or
other matters affecting general working conditions of employees in
the unit.
(c) Post at its Defense Depot Tracy, Tracy, California
facility, copies of the attached Notice marked "Appendix" on forms
to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms they shall be signed by the Director, and
shall be posted and maintained by him for 60 consecutive days
thereafter, in conspicuous places, including bulletin boards and
other places where notices to employees are customarily posted.
The Director shall take reasonable steps to insure that such
notices are not altered, defaced, or covered by any other
material.
(d) Notify the 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.
ELI NASH, JR.
Administrative Law Judge
Dated: February 24, 1981
Washington, D.C.
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 THE
FEDERAL
LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT institute changes concerning the procedures for sick
leave call-in without first notifying the Laborers International Union,
Local 1276, AFL-CIO and affording it the opportunity to bargain
concerning the implementation of such changes and their impact on
adversely affected employees.
WE WILL NOT deal directly with unit employees of the Defense Depot
Tracy, Tracy, California represented exclusively by the Laborers
International Union, Local 1276, AFL-CIO, with respect to personnel
policies and practices, or other matters affecting the general working
conditions of employees in Defense Depot Tracy, Tracy, California.
WE WILL NOT conduct formal discussions between management and unit
employees, or their representatives, concerning personnel policies and
practices or other matters affecting general working conditions of
employees in the unit, without notifying and affording, Laborers
International Union, Local 1276, AFL-CIO, the exclusive representative
of our employees, the opportunity to be represented at such discussions.
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, upon request, meet and negotiate in good faith only with the
Laborers International Union, Local 1276, AFL-CIO, with respect to
personnel policies and practices, or other matters affecting the general
working conditions of employees in Defense Depot Tracy, Tracy,
California.
(Agency or Activity)
(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 question concerning this Notice, or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Federal Labor Relations Authority, Region 9, whose
address is: 450 Golden Gate Avenue, Room 11408, P.O. Box 36016, San
Francisco, CA 94102.
--------------- FOOTNOTES$ ---------------
/1/ Respondent excepts to the Judge's failure to consider the
affidavit of Nancy I. Powers, attached to its motion to dismiss, which
allegedly shows that the Union had knowledge of the change in policy as
early as August 1979. Noting particularly unrebutted record testimony
to the contrary, and that Powers was not called to testify at the
hearing and thus was not subject to cross-examination, the Authority
finds that the Judge did not err in giving no weight to such affidavit
or in concluding "that neither the Union nor employees were aware of
this new policy until employees became upset when told they had to call
in, almost six months after the policy was allegedly implemented."
/2/ Section 7114(a)(2)(A) reads as follows:
(a)(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
(A) any formal discussion between one or more representatives
of the agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy
or practices or other general condition of employment(.)
/3/ See Internal Revenue Service (District, Region, National Office
Unit), 11 FLRA No. 23 (1983), affirmed sub nom. National Treasury
Employees Union v. FLRA, 725 F.2d 126 (D.C. Cir. 1984); Kaiserslautern
American High School, Department of Defense Dependents Schools, Germany
North Region, 9 FLRA 184 (1982); Division of Military and Naval
Affairs, State of New York, Albany, New York, 8 FLRA 307 (1982); U.S.
Department of the Air Force, 47th Air Base Group (ATC), Laughlin Air
Force Base, Texas, 4 FLRA 469 (1980).
/4/ Ms. McCurry, who left work at the Depot, and then returned
testified that when she returned to work two and a half years ago, she
was told of a change with respect to sick leave call-in, but that change
concerned only employees who were sent home by the dispensary; they
were requested to call in the following day if they remained out, but
thereafter were not expected to call-in each day.
/5/ Article X, provides in pertinent part:
Section 1: Sick leave shall be approved in advance upon
request by an employee to the supervisor when the employee has an
appointment for dental, optical or medical examination or
treatment. No policy will be established by the Employer limiting
the number of hours of sick leave for such appointments. Leave
may be taken in 15-minute increments.
Section 2: Sick leave shall be granted to an employee when
incapacitated for the performance of duty by sickness, injury,
when a member of the immediate family of the employee is afflicted
with a contagious disease, (or the employee is otherwise exposed
to such disease) or when the presence of the employee at his post
of duty would jeopardize the health of others. In these instances
when advance notice of absence cannot be given to the Employer,
the employee is responsible for notifying the supervisor, or his
designated representative in the absence of the supervisor, as
early as possible but not later than four hours after the
beginning of the first regular duty shift for which incapacitated.
This four-hour limitation may be waived under mitigating
circumstances where it is shown that the employee was not able to
give notice as prescribed above.
/6/ Sec. 7118(a)(4)(A) reads: . . . Except or provided in
subparagraph (B) of this paragraph, no complaint shall be issued based
on any alleged unfair labor practice which occurred more than 6 months
before the filing of the charge with the Authority.
/7/ Department of Agriculture, U.S. Forest Service, Suislauw National
Forest, Corvallis, Oregon, 3 FLRA No. 42 (1980); Headquarters, San
Antonio Air Logistics Center, Kelly Air Force Base, 2 FLRA No. 57
(1980).
/8/ Section 7114(a)(2)(A) reads in pertinent part: An exclusive
representative of any appropriate unit in any agency shall be given the
opportunity to be represented at-- . . . Any formal discussion between
one or more representatives of the agency and one or more employees in
the unit or their representative concerning any grievance or any
personnel policy or practices or other general condition of employment .
. .
/9/ The General Counsel's Motion to Correct the Transcript is
granted.