Customs Service Region VI and National Treasury Employees Union (Authority decision, May 14, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice case. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

Customs Service Region VI had allowed union representation in several employee grievances over promotion to entry-level supervisory jobs. It later disallowed the union as one employee's representative, citing a conflict of interest. The Authority acknowledged a consistent past practice and a unilateral change. It nonetheless dismissed the union's refusal-to-bargain complaint because the change did not concern bargaining unit employees' conditions of employment.

Decision snapshot

• Authority: Alleged bargaining violations under 5 U.S.C. § 7116(a)(1) and (5).
• Outcome: Unfair labor practice complaint dismissed.
• Key point: A changed representation practice for supervisory promotion grievances did not trigger bargaining over unit employees' working conditions.

Full text (FLRA public release)

[ v18 p1 ]

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(.)