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18:0001(1)CA
The decision of the Authority follows:
18 FLRA No. 1
UNITED STATES DEPARTMENT OF THE TREASURY
UNITED STATES CUSTOMS SERVICE
AND UNITED STATES CUSTOMS SERVICE,
REGION VI
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 143
Charging Party
Case No. 6-CA-639
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Authority" in accordance with
section 2429.1(a) of the Authority's Rules and Regulations.
Upon consideration of the entire record, including the stipulation of
facts, accompanying exhibits, and the parties' contentions, the
Authority finds:
At all times relevant herein, the National Treasury Employees Union
has been the certified exclusive representative of a consolidated unit
which includes certain non-professional, non-supervisory employees at
the El Paso District of U.S. Customs Service, Region VI. The National
Treasury Employees Union, Chapter 143 has been the local representative
of National Treasury Employees Union at the El Paso District of U.S.
Customs Service, Region VI (hereinafter, National Treasury Employees
Union and National Treasury Employees Union, Chapter 143 will be
referred to collectively as the Union).
On six occasions, from January 1977 to March 17, 1980, the Respondent
permitted the Union to represent bargaining unit employees in grievances
filed under the agency grievance procedure concerning promotion actions
to threshold supervisory positions. Employee Willie A. Perez was
represented by the Union in one of these grievances which was filed in
April 1977. On no occasion from January 1977 to March 17, 1980, did
Respondent refuse to allow union representation of bargaining unit
employees in grievances under the agency grievance procedure concerning
promotion actions where such representation had been requested by the
employee.
By letter dated November 7, 1979, employee Willie A. Perez grieved,
under the agency grievance procedure, his non-selection for the position
of Supervisory Customs Inspector, designating the Union as his
representative. On March 17, 1980, he was notified by Respondent of the
disallowance of his choice of representative pursuant to 5 CFR 771 /1/
on the grounds that representation by the Union in a grievance based on
non-selection to a supervisory position constitutes a conflict of
interest.
The Union protested the decision and Respondent reversed itself on
April 14, 1980. However, Respondent made a final determination on April
17, 1980 reaffirming the disallowances of union representation for
employee Perez.
The amended complaint alleges that on or about April 17, 1980,
Respondent violated section 7116(a)(1) and (5) of the Statute /2/ by
refusing and continuing to refuse to bargain in good faith with the
Union when it unilaterally changed its past practice concerning union
representation of bargaining unit employees in agency grievances
concerning promotion actions to threshold supervisory positions, without
furnishing the Union notice and/or an opportunity to bargain.
The Authority finds, in agreement with the General Counsel's and
Charging Party's contentions, that in Region VI of the U.S. Customs
Service there existed a consistent practice over a period of years
whereby Respondent's officials affirmatively permitted union
representation of bargaining unit employees in agency grievances
concerning promotion actions to threshold supervisory positions.
However, for the reasons stated in Nuclear Regulatory Commission, 17
FLRA No. 132 (1985), and cases cited therein, the Authority concludes
that the unilateral change in this practice did not constitute a
violation of section 7116(a)(1) and (5) of the Statute. Although there
was a past practice and a unilateral change took place, it was not a
change in the conditions of employment of bargaining unit employees and
hence there was no obligation to bargain. Accordingly, the complaint
shall be dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 6-CA-639 be, and it
hereby is, dismissed.
Issued, Washington, D.C., May 14, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ 5 CFR 771 as in effect at all material times until December 31,
1979, reads in pertinent part as follows:
Sec. 771.105 Presentation of grievance.
(a) An employee, in presenting a grievance under an agency
grievance system shall:
* * * *
(2) Have the right to be accompanied, represented, and advised
by a representative of his own choosing; and
* * * *
(c) The agency shall have the right:
* * * *
(2) to disallow any selection the employee makes with regard to
a representative on the grounds of conflict of interest or
conflict of position.
(d) The employee shall have the right to challenge the decision
to disallow his/her choice of representative to the head of the
agency or a person the head of the agency has designated, in
accordance with procedures described in the agency grievance
system. The decision of the head of the agency or his/her
designee will be made no later than 10 days after receipt of the
employee challenge unless another reasonable time limit is
specified in the agency grievance system. The decision will be
final.
On December 31, 1979, 5 CFR 771 was revised and now reads as follows:
Sec. 771.302. Criteria
The following criteria shall govern the establishment and
administration of an agency administrative grievance system:
* * * *
(c) Assurance to the grievant of:
* * * *
(2) The right to be accompanied, represented, and advised by a
representative of his or her own choosing, except that an agency
may disallow the choice of an individual as a representative which
would result in a conflict of interest or position, which would
conflict with the priority needs of the agency, or which would
give rise to unreasonable costs to the Government(.)
/2/ Section 7116(a)(1) and (5) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
* * * *
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)