Civil Service Employees Assn., 6 (1993)

Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO and Field Staff Association. Cases 3-CA-16901, 3-CA-16937, and 3-CA-17103

May 13, 1993

DECISION AND ORDER

BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT

On October 23, 1992, Administrative Law Judge Raymond P. Green issued the attached decision. The General Counsel filed exceptions and a supporting brief and the Respondent filed an answering brief. The General Counsel also filed a reply brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,1 and conclusions2 and to adopt the recommended Order.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Buffalo, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order.

Michael Cooperman, Esq., for the General Counsel.

Nancy Hoffman, Esq. and Miguel Ortiz, Esq., for the Respondent.

DECISION

STATEMENT OF THE CASE

RAYMOND P. GREEN, Administrative Law Judge. This case was tried in Buffalo, New York, from July 27 to 29, 1992. The charges were respectively filed on February 21, March 5, and May 26, 1992. The second amended consolidated complaint was issued on July 13, 1992, and alleged:

1. That the Field Staff Association (FSA) has been the collective-bargaining representative of certain of the employees of the Respondent Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (CSEA).

2. That on January 22, 1992, the FSA requested, for purposes of contract administration, certain information from the Respondent which although furnished, was not given in a timely fashion.

3. That in or about November 1991, the Respondent uni-laterally decided to require its employees to utilize beepers and thereafter implemented that decision without bargaining in good faith with the FSA.

4. That in or about May 1992, the Respondent refused to allow certain of its employees represented by the FSA to take leave time because those employees, in furtherance of a labor dispute with Respondent, wished to picket and/or demonstrate at a conference being conducted by CSEA at Lake Placid, New York, on June 5, 1992.

5. That in or about May 1992, the Respondent unilaterally and without bargaining, changed its leave policies to prohibit field staff to take leave if more than two were going to be on leave at any one time.

   On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed, I make the following

   FINDINGS OF FACT

   1. JURISDICTION

      The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2),

      (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act.

   2. ALLEGED UNFAIR LABOR PRACTICES

      1. Background

      The CSEA is a large union representing many thousands of Government and private sector employees in the State of New York. It is structured so that side by side with its elected officers and delegates, there is a group of staff employees who provide a variety of professional services to the Union's membership and elected personnel. These employees are in a sense analogous to an elected Government's civil service.

      The Field Staff Association (FSA) is a labor organization representing certain field staff employees, most of whom are themselves responsible for negotiating and administering collective-bargaining agreements between CSEA and various employers. The bargaining unit consists of:

      1 The judge inadvertently stated that the Respondent announced its policy regarding paging devices in a memorandum dated November 22, 1992. The correct date is November 22, 1991.

      2 In adopting the judge's finding that the Respondent did not violate Sec. 8(a)(5) by unilaterally implementing a requirement that field employees wear beepers, we additionally rely on the following undisputed facts: (1) the Respondent had a past practice of requiring these employees to file a detailed itinerary indicating the precise locations at which they could be reached during the day, in addition to the requirement that employees call the office twice a day; (2) it was the Respondent's practice to call the places listed on the itinerary when it needed to reach an employee; (3) at the time it implemented the beeper requirement, the Respondent announced that, for disciplinary purposes, it would treat an employee's failure to respond to a page in the same manner as failing to submit an itinerary or to call in, i.e., one instance might not trigger discipline but that, ''if it were chronic, they might take a look at that''; and (4) employees were paged only during the same hours of the day in which they would have been called by telephone to pass on messages prior to the implementation of the beeper system. We further note that the record evidence concerning the use of the beepers indicates that they were used by the Respondent only for the same purpose as the itinerary and telephone calls, i.e., to notify the field representatives of itinerary changes and other messages from and through the regional offices. Based on the foregoing and the reasons set forth in the judge's decision, we agree with the judge that the institution of the beepers was not a significant or material change in terms and conditions of employment.

      All employees whose titles shall be OSH specialist, field representative, assistant contract administrator, organizer, collective-bargaining specialist, and newly created ''filed [sic] position,'' or positions that are mutually agreed to be within the Unit.

      The most recent collective-bargaining agreement between the CSEA and FSA ran for a term from October 1, 1988, to September 30, 1991. That contract was extended for an additional month but despite negotiations, no new contract has yet been reached. The FSA, in lieu of a strike, has engaged in a number of actions (mainly demonstrations), in an effort to embarrass the CSEA into reaching a contract on terms agreeable to the FSA.

      Insofar as relevant to this case, the expired contract contained a grievance/arbitration provision for the resolution of disputes and various provisions at article 19, permitting employees to take a variety of paid and unpaid leaves. It also provided at article 15 the following:

1. The Employer shall provide a telephone and/or telephone answering service to field staff who, in the judgement of the Employer, require such service to adequately and effectively provide service to members. The Employer may, at its discretion, rescind this privilege when the aforementioned conditions do not prevail.

2. All necessary supplies deemed by the Employer to be of necessity to members of the Union in the performance of their duties shall be provided by the Employer.

   2. The Beeper Issue

      The CSEA first issued beepers to certain of its field staff in 1989. At that time, beepers were issued only to employees within CSEA's region 3 and were issued on a temporary basis in connection with a campaign by an employer to decertify the CSEA as the union representing that employer's employees. Thereafter, in 1990, when beepers were permanently distributed to employees within region 3, Vincent Sicari, president of the FSA, protested their use and contended to the Respondent that this should have been negotiated first.

      Diane Campion, CSEA's director of field services, decided in or about October 1991 to issue beepers to all field staff employees statewide. Thus, on November 22, 1992, the Respondent sent the following memorandum to Sicari:

      You are hereby advised that CSEA intends to supply beepers to our field staff employees where such service is available.

      We have determined that beepers are required by our field staff to adequately and effectively provide service to our membership.

      Prior to this, the field staff employees were required to file an itinerary at the start of each week and to call into their regional offices two times each day when out in the field. These requirements obviously were meant to allow the CSEA to communicate with the field service representatives who might at any given time be arguing a case before an arbitrator or conducting negotiations with an employer.

      On December 9, 1991, Sicari wrote to Michele Agnew, executive assistant to the president of CSEA, requesting to

      ''negotiate terms and conditions of said beepers as to its impact on FSA staff.''

      On December 17, 1991, Agnew responded and indicated that although she was willing to meet for the purpose of responding to any concerns of the field staff, she nevertheless intended to distribute the beepers soon after January 1, 1992.

      After a further exchange of correspondence, the parties met on January 13, 1992, to discuss the beepers. The FSA representatives, Vincent Sicari and Penelope Bush, asked questions about how the beepers were to be used and whether their nonuse would lead to discipline. Agnew responded that the beepers should be turned on during regular working hours (8:30 a.m. to 5 p.m.), although an employee who worked late and needed extra sleep could legitimately turn off his beeper for the night and not reactivate it until waking. (This is hardly a real issue because even without beepers, the CSEA, if it really needed to contact a representative, could wake the sleeping employee simply by using an old fashioned telephone.) Agnew told them that failure to use the beepers would not of itself be grounds for discipline, albeit discipline could be given if an employee's failure to respond was part of an overall pattern of failing to return phone calls or failing to call in from the field as required. The field representatives were further advised...