Defense Distribution Region West, Tracy, California and Laborers' International Union, Local 1276, AFL-CIO (Authority decision, February 14, 1992)

Final FLRA decision. This is a final unfair labor practice order of the Federal Labor Relations Authority. 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

Defense Distribution Region West restricted eating and drinking in several Tracy, California, warehouses where employees had previously been allowed to do so. An administrative law judge found that the restrictions changed a consistent workplace practice without notice to the union or a chance to bargain. The Authority adopted the judge's violation findings and rejected challenges to his assessment of witness credibility. It ordered the agency to restore the prior practice in the affected warehouses, notify the union before further changes, and bargain on request. The Authority adjusted the order's warehouse list to match the judge's specific findings.

Decision snapshot

• Authority: Interference and failure to bargain under 5 U.S.C. § 7116(a)(1) and (5).
• Outcome: Judge's violation findings adopted; prior practice restored and bargaining ordered.
• Key point: A consistent practice allowing food and drink in specified warehouses could not be restricted without union notice and bargaining.

Full text (FLRA public release)

[ v43 p1539 ]
43:1539(124)CA

The decision of the Authority follows:

43 FLRA No. 124

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEFENSE DISTRIBUTION

REGION WEST

TRACY, CALIFORNIA

(Respondent)

and

LABORS' INTERNATIONAL UNION

LOCAL 1276, AFL-CIO

(Charging Party/Union)

9-CA-10183

DECISION AND ORDER

February 14, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally changing conditions of employment of unit employees when it restricted eating and drinking in some of its warehouses and thereby changed a consistent past practice without notifying the Union and affording it the opportunity to bargain about the decision. The Respondent filed exceptions to the Judge's decision 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 Statute, we have reviewed the Judge's rulings and find that no prejudicial error was committed. We affirm the rulings. On consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order.(1)

II. Order (2)

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, Defense Distribution Region West, Tracy, California, shall:

1. Cease and desist from:

(a) Unilaterally changing conditions of employment of bargaining unit employees by changing its practices regarding the use of food and drink in its warehouses numbered 2-3, 5-16, 18 and 22, without first notifying the Laborers' International Union, Local 1276, AFL-CIO, the exclusive representative of certain of its employees, and affording it an opportunity to bargain about the decision to change such conditions of employment.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured them by the Statute.

2. Take the following affirmative action in order to effectuate the
   purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Restore the past practice in warehouses 2-3, 5-6, 8-12, 16, 18 and 22, where food and drink were permitted without restriction before May 1989, and in warehouses 7 and 13-15, where food and drink were permitted with such limited restrictions as were in effect before May 1989.

(b) Notify the Laborers' International Union, Local 1276, AFL-CIO in advance of any intended changes concerning eating and drinking at workstations, and on forklifts, and, upon request, negotiate to the extent consonant with law and regulations on the proposed changes.

(c) Post at its facilities in Tracy, California, copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be posted and signed by the Commanding Officer 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.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco Office, Federal Labor Relations Authority, 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 NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally change conditions of employment of bargaining unit employees by changing our practices regarding the use of food and drink in warehouses without first notifying the Laborers' International Union, Local 1276, AFL-CIO, the exclusive representative of certain of our employees, and affording it an opportunity to bargain about the decision to change such 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 Relations Statute.

WE WILL restore the past practice in warehouses 2-3, 5-6, 8-12, 16, 18 and 22, where food and drink were permitted without restriction before May 1989, and in warehouses 7 and 13-15, where food and drink were permitted with such limited restrictions as were in effect before May 1989.

WE WILL notify the Laborers' International Union, Local 1276, AFL-CIO, in advance of any intended changes concerning eating and drinking at workstations and on forklifts, and, upon request, negotiate to the extent consonant with law and regulations on the proposed changes.

_____
(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 of the Federal Labor Relations Authority, San Francisco Regional Office, whose address is: 901 Market Street, Suite 220, San Francisco, California 94103, and whose telephone number is: (415) 744-4000.

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

1. Insofar as the Respondent argues that the Judge's
   "methodology" was faulty, Exceptions at 5-7, the exceptions pertain to the Judge's credibility findings on which his findings of fact are based. The demeanor of witnesses is an important factor in resolving issues of credibility. Only the Judge has had the benefit of observing the witnesses while they testified. We will not overrule a judge's determination regarding credibility of witnesses unless a clear preponderance of all the relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility findings. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 345, 346 n.1 (1990).

Insofar as the Respondent argues that the Judge erred by finding that no restrictions existed in warehouses 23-25, 27 or those numbered higher than 29, the Respondent has misread the Judge's decision, which clearly states that in those warehouses the Judge found "no evidence of a change . . . ." Judge's Decision at 14. Accordingly, if in fact any such warehouses exist, they would not be covered by our Order.

2. We have conformed our Order to the Judge's specific
   findings. With regard to warehouses 17 and 20, we have relied on the Judge's finding that "there was no specific affirmative evidence of a nonrestrictive policy[ ]" and that "[t]here is, thus, no evidence of a change with respect to
   [those warehouses]." Judge's Decision at 14. With regard to warehouse 22, we note the Judge's finding crediting an employee's testimony that no restrictions existed until the fall of 1989. Id. at 13. Accordingly, we view the Judge's omission of warehouse 22 in his summary on pages 14 and 18 concerning warehouses where no restrictions existed prior to May 1989 and his failure to include warehouse 22 in his discussion of the remedy on page 19 as inadvertent errors.