Internal Revenue Service, Washington D.C. (Respondent) and National Treasury Employees Union, NTEU Chapter No. 65 (Complainant) 

 



[ v01 p809 ]
01:0809(91)CA
The decision of the Authority follows:


 1 FLRA No.91
 
 INTERNAL REVENUE SERVICE,
 WASHINGTON, D.C.
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES
 UNION, NTEU CHAPTER NO. 65
 Complainant
 
                                            Assistant Secretary
                                            Case No. 22-08866(CA)
 
                            DECISION AND ORDER
 
    ON APRIL 6, 1979, ADMINISTRATIVE LAW JUDGE PETER MCC. GIESEY ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
 FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
 PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT
 BE DISMISSED IN ITS ENTIRETY.  THEREAFTER, THE COMPLAINANT FILED TIMELY
 EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
 ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 2400.2 OF THE AUTHORITY'S
 TRANSITION RULES AND REGULATIONS (44 F.R. 7).  THE AUTHORITY CONTINUES
 TO BE RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
 SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS
 ARE HEREBY AFFIRMED.
 
    UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
 DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING
 THE COMPLAINANT'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE
 ADMINISTRATIVE LAW JUDGE'S FINDINGS, /1/ CONCLUSIONS AND
 RECOMMENDATIONS.  /2/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 22-08866(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JULY 31, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    KEITH A. AQUI, ESQUIRE
 
    OFFICE OF THE CHIEF COUNSEL
 
    GENERAL LEGAL SERVICES DIVISION
 
    BRANCH NO. 1, ROOM 4562
 
    INTERNAL REVENUE SERVICE
 
    1111 CONSTITUTION AVENUE, N.W.
 
    WASHINGTON, D.C.  20224
 
                            FOR THE RESPONDENT
 
    KENNETH A. DAVIS, ESQUIRE
 
    ASSISTANT COUNSEL
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    SUITE 1101
 
    1730 K STREET, N.W.
 
    WASHINGTON, D.C.  20006
 
                            FOR THE COMPLAINANT
 
    BEFORE:  PETER MCC. GIESEY
 
                         ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
    THIS IS A PROCEEDING BROUGHT UNDER EXECUTIVE ORDER 11491, AS AMENDED,
 (HEREAFTER, "THE ORDER") BY NATIONAL TREASURY EMPLOYEES UNION, NTEU
 CHAPTER NO. 065, A LOCAL OF THE LABOR ORGANIZATION REPRESENTING THE
 AGENCY'S EMPLOYEES IN A UNIT APPROPRIATE FOR PURPOSES OF COLLECTIVE
 BARGAINING, AGAINST THE AGENCY.  NTEU COMPLAINS THAT THE AGENCY VIOLATED
 SECTIONS 19(A) (1) AND (6) OF THE ORDER, /1/ BY REFUSING TO MEET AND
 CONFER WITH NTEU CONCERNING THE IMPACT AND IMPLEMENTATION OF THE
 PHYSICAL REARRANGEMENT OF A WORK AREA.
 
    A HEARING WAS HELD IN WASHINGTON, D.C. ON OCTOBER 27, 1978.  BRIEFLY,
 THE RECORD SHOWS THE FOLLOWING.
 
    STATEMENT OF THE CASE
 
    MR. JOHN PETER MARTIN, VICE-PRESIDENT OF THE LOCAL CHAPTER OF THE
 UNION AND SHOP STEWARD, TESTIFIED THAT, ON JUNE 17, 1977, /2/ HE
 RECEIVED A TELEPHONE CALL FROM THE DIVISION DIRECTOR OF EMPLOYEE PLANS
 WHO INFORMED HIM THAT HIS DIVISION WAS CONTEMPLATING "SOME
 REORGANIZATION AFFECTING BARGAINING UNIT EMPLOYEES" AND THAT HE WOULD BE
 PROVIDED SPECIFIC INFORMATION AT SOME TIME IN THE FUTURE.  ON JULY 12,
 MR. MARTIN RECEIVED FLOOR PLANS DEPICTING PHYSICAL REORGANIZATION OF
 WORK AREAS ON TWO FLOORS OF THE OFFICE BUILDING OCCUPIED BY THE AGENCY.
 EMPLOYEE DESK ASSIGNMENTS, BY NAME, WERE INDICATED AS WELL AS WALLS AND
 WINDOWS.
 
    REFERRED TO BY THE WITNESSES AS "OPEN SPACE" PLANNING, THE DRAWINGS
 DEPICTED WHAT IS COMMONLY KNOWN TO ARCHITECTS AND DESIGNERS AS "OFFICE
 LANDSCAPING", INVOLVING REMOVAL OF SELECTED WALLS AND USE OF MOVEABLE
 SPACE DIVIDERS IDEALLY ORGANIZED TO REFLECT THE PHYSICAL MOVEMENT OF A
 WORK PRODUCT.
 
    MR. MARTIN TESTIFIED THAT THE DRAWINGS WERE GIVEN HIM BY THE
 ASSISTANT DIRECTOR WHO "INDICATED THAT THESE WERE PROPOSED PLANS AND
 THAT THEY HAD TO BE SENT TO FACILITIES MANAGEMENT BRANCH . . . AND THEN,
 AFTER THEIR APPROVAL, HAD TO BE SENT TO GSA FOR THEIR APPROVAL AND UNTIL
 THESE TWO OTHER BODIES APPROVED THE PLANS, THAT NO FINAL PLANS COULD BE
 GIVEN TO THE UNION." MARTIN STATED THAT THE ASSISTANT DIRECTOR REQUESTED
 THAT HE, AS UNION STEWARD AND ON OFFICIAL TIME, "CONTACT AFFECTED
 EMPLOYEES AND . . . SOLICIT . . . COMMENTS FROM THEM" IN ORDER THAT
 "POTENTIAL GRIEVANCES BY AFFECTED EMPLOYEES" MIGHT BE AVOIDED.
 
    BY SEPTEMBER 12, ACCORDING TO MR. MARTIN, HE HAD SOLICITED AND
 COMPILED THE COMMENTS OF AFFECTED EMPLOYEES AND A MEETING WAS HELD
 BETWEEN THREE AGENCY MANAGEMENT REPRESENTATIVES AND THREE UNION
 OFFICERS.  MR. MARTIN PRESENTED THE COMMENTS AND THEY WERE DISCUSSED BY
 THE PARTIES.  /3/
 
    MR. MARTIN STATED THAT ON SEPTEMBER 20, HE OBSERVED THAT WORK HAD
 BEGUN IN THE PLANNED AREA.  HE IMMEDIATELY CONTACTED THE ACTING JOINT
 COUNCIL PRESIDENT WHO WROTE A LETTER TO MANAGEMENT REQUESTING "TO
 NEGOTIATE THE CHANGES IN THE GENERAL WORKING CONDITIONS PROPOSED IN THE
 EMPLOYEE PLANS DIVISION."
 
    MR. MARTIN TESTIFIED THAT HE HAD CONSISTENTLY REPRESENTED TO
 MANAGEMENT THAT THE UNION RESERVED ITS RIGHT TO SUBMIT ITS "INPUT" UPON
 BEING APPRISED THAT THE PLANS WERE FINALLY APPROVED BY THE REVIEWING
 BODIES AND HAD BEEN "ASSURED . . . THAT WHEN THE PLANS WERE FINALIZED .
 . . WE WOULD HAVE THAT OPPORTUNITY." HOWEVER, HE STATED THAT WHEN HE WAS
 CALLED TO THE OFFICE THE ASSISTANT DIRECTOR 7 TO 10 DAYS AFTER
 CONSTRUCTION WORK BEGAN, HE WAS TOLD THAT MANAGEMENT REGRETTED THAT THE
 EMPLOYEE COMMENTS WOULD NOT BE USED AND WHEN ASKED WHETHER THE UNION
 WOULD BE AFFORDED OPPORTUNITY FOR COMMENT, THE ASSISTANT DIRECTOR
 
    INDICATED THAT HE WAS SORRY BUT THE PLANS WERE FINALIZED AND THEY
 WERE GOING TO GO AHEAD
 
    WITH THE WORK AND THAT I WOULD HAVE TO BE LEFT TO DO WHAT I HAD TO
 GO, ((W)HICH INDICATED TO
 
    ME THE UNFAIR LABOR PRACTICE()).
 
    MR. JOHN BURKE, ASSISTANT DIRECTOR AT THE RELEVANT TIME, TESTIFIED
 THAT, FOLLOWING NEW LEGISLATION IN 1974, HIS DIVISION GREW FROM 30 OR 40
 EMPLOYEES TO APPROXIMATELY 60 AND THAT IN 1976 THE "GROUP" WAS INCREASED
 BY "A SUBSTANTIAL NUMBER OF NEW EMPLOYEES" IN A TRAINING STATUS FOR WHOM
 THE ONLY AVAILABLE SPACE WAS A CORRIDOR.  FOLLOWING MONTHS OF STUDY, IT
 WAS DECIDED THAT A CORRIDOR SHOULD BE OPENED UP BY REMOVING THE WALLS
 THUS CREATING "WINDOW SPACE".  HE STATED THAT MANAGEMENT'S PLANS WERE
 REDUCED TO FLOOR PLANS IN JUNE AND THAT THE PLANS WERE THEN GIVEN TO THE
 UNION AND SUBMITTED TO THE ASSISTANT COMMISSIONER'S OFFICE FOR APPROVAL.
 
    HE STATED THAT HE MET WITH MR. MARTIN TO DISCUSS THE PLANS, THAT
 MARTIN HAD ASKED IF HE OBJECTED TO "CANVASSING" THE EMPLOYEES CONCERNING
 THE PLANS, AND THAT HE REPLIED THAT HOWEVER HE SOLICITED EMPLOYEES'
 VIEWS WAS UP TO HIM.  BURKE TESTIFIED THAT HE REPLIED IN THE NEGATIVE
 WHEN MARTIN ASKED IF HE COULD PERFORM THIS TASK ON OFFICIAL TIME.  AT
 THAT MEETING HE EXPLAINED TO MR. MARTIN THAT THE PLANS WERE BEING
 FORWARDED TO THE FACILITIES MANAGEMENT DIVISION AND THAT "UNTIL THEY
 CAME BACK, WE COULD NOT BEGIN TO IMPLEMENT (THEM) AND THAT THEY WOULD
 NOT BE THE ABSOLUTE FINAL AND/OR THE FINAL ONES."
 
    THERE WAS, IN FACT, ONE CHANGE IN THE FLOOR PLANS AFTER THAT
 MEETING-- ONE WALL WHICH WAS TO BE REMOVED WAS LEFT STANDING.  BURKE
 STATED THAT AT VARIOUS TIMES HE HAS DISCUSSED WITH MARTIN THE QUESTION
 OF A DEFINITE DATE FOR IMPLEMENTATION AND HAD TOLD HIM THAT HE WOULD BE
 INFORMED OF THE DATES "AS SOON AS I GOT THEM".
 
    FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
    HAVING CONSIDERED THE ENTIRE RECORD, INCLUDING THE TESTIMONY,
 EXHIBITS AND BRIEFS OF THE PARTIES AND HAVING OBSERVED THE DEMEANOR OF
 THE WITNESSES, I MAKE THE FOLLOWING FINDINGS OF FACTS, CONCLUSIONS OF
 LAW AND DECISION AND ORDER BASED THEREON.
 
    THE FACTS ARE AS STATED ABOVE.  WHERE THERE APPEAR TO BE
 CONTRADICTIONS, I BELIEVE THAT THE WITNESSES HAVE TESTIFIED TO AN
 ADMIXTURE OF MEMORY, PERCEPTION AND INTERPRETATION.  IN ANY CASE, THE
 FACTS ARE NOT MATERIALLY ALTERED BY THESE SEEMING CONTRADICTIONS, FOR
 THIS DECISION MUST BE BASED UPON THOSE THINGS WHICH HAPPENED AND NOT THE
 PERCEPTIONS OF THOSE EVENTS TO WHICH BOTH WITNESSES HAVE, IN PART,
 TESTIFIED, NASA, KENNEDY SPACE CENTER, A/SLMR 223(1972).
 
    THUS, ON JULY 12, THE UNION WAS PROVIDED WITH THE AGENCY'S PROPOSED
 ALTERATION PLANS TOGETHER WITH SPECIFICATION OF EACH AFFECTED UNIT
 MEMBER'S NEW WORKPLACE, THE UNION THEN CANVASSED ITS AFFECTED UNIT
 EMPLOYEES AND MET WITH MANAGEMENT AGAIN IN SEPTEMBER.  WHETHER THE
 CANVASSING WAS ON OFFICIAL TIME OR OTHER IS IRRELEVANT AS NO PART OF THE
 COMPLAINT IS BASED ON THIS CIRCUMSTANCE.  UNREMARKABLY, ALL EMPLOYEES
 OBJECTED TO THE IMPLEMENTATION OF THE PLAN.  /4/ THAT THE COLLECTIVE
 BARGAINING AGENCY, GIVEN AMPLE OPPORTUNITY TO MEET AND CONFER REGARDING
 THE IMPLEMENTATION AND IMPACT OF MANAGEMENT'S PLANS, CHOSE INSTEAD TO
 ARGUE AGAINST ITS ADOPTION WAS THE UNION AGENTS' CHOICE, ACCURATELY
 REFLECTING THE UNIT MEMBER'S WISHES.  HAVING MADE SUCH A CHOICE, NEITHER
 THE ORDER NOR THE KNOWN EXIGENCIES OF BUREAUCRATIC REALITY MAY BE USED
 TO JUSTIFY THE PRESUMPTION OF RIGHT TO FURTHER OPPORTUNITY TO RETURN TO
 THE STARTING POINT AND ENGAGE IN DISCUSSION OF IMPACT AND IMPLEMENTATION
 OF A WORK AREA REARRANGEMENT WHICH THE RECORD AMPLY DEMONSTRATES WAS
 TOTALLY UNACCEPTABLE TO THE AFFECTED EMPLOYEES.  /5/
 
    TO ARGUE, AS DOES COMPLAINANT HERE, THAT SUCH CONSTRUCTION PLANS MUST
 BE "FINALIZED", I.E., FULLY APPROVED BY ALL RESPONSIBLE AGENCIES, IS
 UNREALISTIC.  I AM SURE THAT THAT BUREAUCRATIC LABYRINTH THROUGH WHICH
 ALL SUCH CONSTRUCTION PROPOSALS MUST PASS BEFORE "FINALIZATION" IS AS
 WELL KNOWN TO COMPLAINANT AS TO MANAGEMENT.  IN THE BEGINNING IS
 MANAGEMENT'S PLAN, AND IN THE END IS WHAT REMAINS OF IT UPON REVIEW BY
 VARIOUS OTHER BRANCHES OF THE GOVERNMENT.  SHOULD FRUITFUL DISCUSSION OF
 IMPLEMENTATION AND IMPACT BE MADE TO WAIT UPON "FINALIZATION", IT IS
 LIKELY THAT THE ENTIRE PROCESS WOULD HAVE TO BEGIN ANEW.  THUS WOULD THE
 UNION'S UNQUESTIONED RIGHTS BE FASHIONED INTO AN INSTRUMENT TO PARALYZE
 MANAGEMENT-- A SORT OF MOEBIUS CURVE OF "FINALIZATION".  THIS IS NEITHER
 CONSISTENT WITH THE INTENT OR EFFECT OF THE ORDER.
 
    ACCORDINGLY;
 
    THE COMPLAINT IS DISMISSED.
 
                             PETER MCC. GIESEY
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  APRIL 6, 1979
 
    WASHINGTON, D.C.
 
    /1/ IN REACHING THE AUTHORITY'S DECISION, IT IS NOTED PARTICULARLY
 THAT THE ADMINISTRATIVE LAW JUDGE FOUND THAT ON JULY 12, 1977, THE
 COMPLAINANT WAS PROVIDED WITH THE PROPOSED PLANS FOR THE EMPLOYEE PLANS
 DIVISION REORGANIZATION, WHICH WITH A MINOR DEVIATION WENT INTO EFFECT
 IN OCTOBER 1977, AND THAT IT NEVER REQUESTED BARGAINING ON IMPACT AND
 IMPLEMENTATION WHEN IT MET WITH THE RESPONDENT ON SEPTEMBER 12, 1977,
 AFTER HAVING SECURED EMPLOYEE COMMENTS.
 
    /2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /3/ VIZ.:
 
    SECTION 19.  UNFAIR LABOR PRACTICES.  (A) AGENCY MANAGEMENT SHALL
 NOT--
 
    (1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE
 OF THE RIGHTS ASSURED
 
    BY THIS ORDER;
 
    (6) REFUSE TO CONSULT, CONFER OR NEGOTIATE WITH A LABOR ORGANIZATION
 AS REQUIRED BY THIS
 
    ORDER.
 
    /4/ ALL DATES ARE 1977.
 
    /5/ THESE COMMENTS, COPIES OF WHICH WERE PLACED IN EVIDENCE