Internal Revenue Service, Austin Service Center (Respondent) and National Treasury Employees Union and NTEU Chapter 72 (Complainant) 

 



[ v02 p769 ]
02:0769(97)CA
The decision of the Authority follows:


 2 FLRA No.97
 
 INTERNAL REVENUE SERVICE,
 AUSTIN SERVICE CENTER
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU CHAPTER 72
 Complainant
 
                                            Assistant Secretary
                                            Case No. 63-8897(CA)
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE ORDER
 TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS AUTHORITY OF REGIONAL
 DIRECTOR GABRIEL PERALES, JR. IN ACCORDANCE WITH SECTION 206.5 OF THE
 RULES AND REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY.
 
    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 304 OF REORGANIZATION
 PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
 (44 F.R. 44741, JULY 30, 1979).  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).
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASE,
 INCLUDING THE PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND
 THE BRIEFS SUBMITTED BY THE RESPONDENT AND THE COMPLAINANT, THE
 AUTHORITY FINDS:
 
    THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED SECTION
 19(A)(1) AND (6) OF THE ORDER BY CHANGING THE HOURS OF DUTY OF THREE
 BARGAINING UNIT EMPLOYEES WITHOUT FIRST NOTIFYING COMPLAINANT, AND
 AFFORDING IT AN OPPORTUNITY TO NEGOTIATE CONCERNING THE IMPACT AND
 IMPLEMENTATION OF THE CHANGE.  THE RESPONDENT CONTENDS THAT THE CHANGE
 OF HOURS OF DUTY FOR THE THREE BARGAINING UNIT EMPLOYEES WAS
 INSUBSTANTIAL AND DID NOT CONSTITUTE A CHANGE IN WORKING CONDITIONS.  AS
 A RESULT, THE RESPONDENT CONTENDS THAT IT WAS NOT OBLIGATED TO BARGAIN
 WITH THE COMPLAINANT OVER THE IMPACT AND IMPLEMENTATION OF ITS ACTION.
 THE RESPONDENT ALSO ARGUES THAT ITS ACTIONS WERE MERELY IN CONFORMITY
 WITH THE CIVIL SERVICE COMMISSION REGULATIONS AND AS A RESULT THERE WAS
 NOTHING TO NEGOTIATE WITH COMPLAINANT.  THE RESPONDENT FURTHER ARGUES
 THAT IF IT WAS OBLIGATED TO NEGOTIATE THE IMPACT AND IMPLEMENTATION OF
 ITS DECISION, ITS FAILURE TO DO SO WAS DE MINIMIS AND DID NOT CONSTITUTE
 AN UNFAIR LABOR PRACTICE.
 
    THE UNDISPUTED FACTS, AS STIPULATED BY THE PARTIES, ARE AS FOLLOWS:
 
    AUSTIN SERVICE CENTER IN AUSTIN, TEXAS, IS ONE OF THE TEN SERVICE
 CENTERS IN THE INTERNAL REVENUE SERVICE.  NATIONAL TREASURY EMPLOYEES
 UNION CHAPTER 72 (NTEU) IS, AND WAS AT ALL TIME PERTINENT TO THE
 COMPLAINT, THE EXCLUSIVE REPRESENTATIVE OF THE BARGAINING UNIT EMPLOYEES
 IN THE AUSTIN SERVICE CENTER.
 
    ON MAY 2, 1978, THE FEDERAL EMPLOYEES APPEALS AUTHORITY (FEAA) OF THE
 UNITED STATES CIVIL SERVICE COMMISSION CONDUCTED A HEARING PURSUANT TO 5
 C.F.R. 772,307 AT THE AUSTIN SERVICE CENTER IN THE MATTER OF THE ADVERSE
 ACTION APPEAL OF RICHARD COX, A BARGAINING UNIT EMPLOYEE.  COX WAS
 REPRESENTED PRIVATE COUNSEL.  PRIOR TO THE HEARING, COX REQUESTED THAT
 CERTAIN EMPLOYEES OF THE RESPONDENT APPEAR AS WITNESSES IN HIS BEHALF.
 IN ACCORDANCE WITH 5 C.F.R.  772.307(C)(2), THE FEAA REQUESTED
 RESPONDENT TO MAKE THESE EMPLOYEES AVAILABLE TO APPEAR AS WITNESSES AT
 THE HEARING.  /1/ THE FEAA REQUEST TO RESPONDENT WAS CONVEYED BY LETTER
 DATED APRIL 14, 1978, AND RESPONDENT RECEIVED THIS LETTER ON APRIL 19,
 1978.  AMONG THOSE WHOM RESPONDENT WAS REQUESTED TO MAKE AVAILABLE TO
 APPEAR AS WITNESSES WERE THREE BARGAINING UNIT EMPLOYEES-- FREDERICK
 OBERDORF, MARK TUREK, AND LORNA BOECK-- WHO WORKED ON THE 5:00 P.M. TO
 1:30 A.M. SHIFT IN THE ERROR CORRECTION SECTION.  BECAUSE THE HEARING
 WAS SCHEDULED TO COMMENCE AT 8:30 A.M., MAY 2, 1978, RESPONDENT CHANGED
 THESE EMPLOYEES' HOURS OF DUTY TO THE 7:30 A.M. TO 4:00 P.M. SHIFT FOR
 THE DAY OF THE HEARING ONLY.
 
    EMPLOYEES OBERDORF AND BOECK WERE NOTIFIED OF THEIR HOURS OF DUTY
 CHANGE AT APPROXIMATELY 6:00 P.M., MAY 1, 1978, THE EVENING BEFORE THE
 FEAA HEARING.  AT THAT TIME, THEY WERE TOLD BY THEIR SUPERVISOR THAT IF
 THEY WISHED, THEY COULD TAKE ANNUAL LEAVE FOR THE REMAINING SEVEN HOURS
 OF THEIR SHIFT TO GO HOME AND REST BEFORE THE HEARING.  THE TWO
 EMPLOYEES DECLINED, AND REMAINED AT WORK.  BOECK WENT HOME AT 1:30 A.M.
 ON MAY 2, 1978, UPON THE CONCLUSION OF HER NORMAL SHIFT.  OBERDORF
 VOLUNTARILY WORKED OVERTIME UNTIL APPROXIMATELY 3:00 A.M., MAY 2, 1978.
 TUREK, WHO WORKED IN ANOTHER UNIT, ALSO WAS ADVISED OF THE CHANGE IN HIS
 HOURS OF DUTY AT APPROXIMATELY 6:00 P.M. ON MAY 1, 1978.  HE WAS NOT
 GIVEN THE OPTION OF USING ANNUAL LEAVE THAT EVENING, AND HE WORKED UNTIL
 1:30 A.M. ON MAY 2, 1978, HIS NORMAL QUITTING TIME.  OBERDORF, BOECK,
 AND TUREK REPORTED BACK TO WORK AT 7:30 A.M. ON MAY 2, 1978, AS A RESULT
 OF THE CHANGE IN THEIR HOURS OF DUTY.  THE FEAA HEARING BEGAN AT 8:30
 A.M., AS SCHEDULED.  LATER THAT MORNING ALL THREE EMPLOYEES TESTIFIED AT
 THE HEARING.
 
    BECAUSE OF FATIGUE, OBERDORF FAILED TO COMPLETE HIS SHIFT ON MAY 2,
 1978, AFTER THE CONCLUSION OF HIS TESTIMONY.  USING FOUR HOURS OF SICK
 LEAVE, HE WENT HOME AT 11:30 A.M.  BOECK ALSO WENT HOME AT 11:30 A.M.
 BECAUSE OF FATIGUE, BUT SHE HAD TO ACCEPT FOUR HOURS LEAVE WITHOUT PAY
 IN ORDER TO DO SO.  BOECK RETURNED TO WORK LATER THAT EVENING (MAY 2,
 1978), AND MADE UP THE FOUR HOURS LEAVE WITHOUT PAY BY WORKING FROM 5:00
 P.M. TO 9:00 P.M.  SHE ALSO RECEIVED TEN PERCENT ADDITIONAL NIGHT
 DIFFERENTIAL PAY FOR THREE HOURS WORK THAT EVENING FROM 6:00P.M. TO 9:00
 P.M.  AFTER TUREK TESTIFIED, HE COMPLETED HIS SHIFT AND WENT HOME AT
 4:00 P.M.  RESPONDENT DID NOT NOTIFY COMPLAINANT OF THE CHANGE IN THE
 THREE EMPLOYEES' HOURS OF DUTY. COMPLAINANT LEARNED OF THE CHANGE AFTER
 THE FEAA HEARING WAS COMPLETED.
 
                         FINDINGS AND CONCLUSIONS
 
    THE FINDING IS THE RESPONDENT'S FAILURE TO GIVE COMPLAINANT ADVANCE
 NOTICE OF ITS INTENT TO CHANGE THE THREE BARGAINING UNIT EMPLOYEES'
 HOURS OF DUTY FOR THE DAY OF THE FEAA HEARING, AND AN OPPORTUNITY TO
 MEET AND CONFER WITH RESPECT TO THE IMPACT AND IMPLEMENTATION OF THE
 CHANGE VIOLATES SECTION 19(A)(1) AND (6) OF THE ORDER.  IT IS CLEAR THAT
 THE SHIFT CHANGE WAS MADE IN ORDER TO ASSURE COMPLIANCE WITH 5 C.F.R.
 772.307(C)(2), AND HENCE, THE BASIC DECISION TO MAKE THE SHIFT CHANGE
 WAS NONNEGOTIABLE.  HOWEVER, IT IS EQUALLY CLEAR THAT EVEN WHEN AN
 ACTIVITY IS PRIVILEGED TO TAKE SUCH AN ACTION WITHOUT FIRST BARGAINING
 ABOUT THE BASIC DECISION, IT IS OBLIGATED TO NOTIFY AND BARGAIN, UPON
 REQUEST, WITH THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES CONCERNING
 THE PROCEDURE FOR IMPLEMENTING THE DECISION AND THE IMPACT OF THE
 DECISION ON THE EMPLOYEES.  /2/ THE AUTHORITY CAN NOT ACCEPT THE
 RESPONDENT'S ARGUMENTS THAT ITS ACTION WAS NOT A MATTER AFFECTING
 WORKING CONDITIONS UNDER SECTION 11(A) OF THE ORDER BECAUSE THE CHANGE
 WAS INSUBSTANTIAL AND DID NOT EFFECT A CHANGE IN WORKING CONDITIONS, OR
 THAT, IN ANY EVENT, ANY VIOLATION OF THE ORDER WHICH MAY HAVE OCCURRED
 WAS DE MINIMIS.  IN THIS REGARD, THE AUTHORITY FINDS THE CHANGE WAS
 SIGNIFICANT IN ITS EFFECT ON THE WORKING CONDITIONS OF BARGAINING UNIT
 EMPLOYEES, NOTING PARTICULARLY THE FACT THAT THESE EMPLOYEES WERE
 COMPELLED TO WORK TWO CONSECUTIVE SHIFTS WITH ONLY A BRIEF INTERLUDE FOR
 REST.
 
    ACCORDINGLY, THE AUTHORITY FINDS THAT THE RESPONDENT VIOLATED SECTION
 19(A)(1) AND (6) OF THE ORDER BY FAILING TO NOTIFY THE COMPLAINANT OF
 ITS INTENT TO CHANGE THE WORKING HOURS OF UNIT EMPLOYEES AND AFFORD THE
 COMPLAINANT THE OPPORTUNITY TO MEET AND CONFER, UPON REQUEST, WITH
 RESPECT TO THE IMPACT AND IMPLEMENTATION OF THE CHANGE.  /3/
 
                                   ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE INTERNAL REVENUE SERVICE, AUSTIN SERVICE CENTER SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) CHANGING THE HOURS OF DUTY OF EMPLOYEES WITHOUT FIRST NOTIFYING
 THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 72, THE EXCLUSIVE
 REPRESENTATIVE OF ITS EMPLOYEES, AND AFFORDING SUCH REPRESENTATIVE THE
 OPPORTUNITY TO MEET AND CONFER TO THE EXTENT CONSONANT WITH LAW AND
 REGULATIONS ON THE IMPACT AND IMPLEMENTATION OF THE DECISION TO
 EFFECTUATE SUCH CHANGES.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION:
 
    (A) NOTIFY THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 72
 OF ANY INTENDED DECISION TO CHANGE THE HOURS OF DUTY OF EMPLOYEES AND
 UPON REQUEST, MEET AND CONFER TO THE EXTENT CONSONANT WITH LAW AND
 REGULATIONS ON THE IMPACT AND IMPLEMENTATION OF SUCH DECISION.
 
    (B) POST AT ITS AUSTIN SERVICE CENTER, IN AUSTIN, TEXAS, COPIES OF
 THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
 FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF SUCH FORMS THEY
 SHALL BE SIGNED BY THE DIRECTOR OF THE AUSTIN SERVICE CENTER AND SHALL
 BE POSTED AND MAINTAINED BY THE DIRECTOR OF THE AUSTIN SERVICE CENTER IN
 AUSTIN, TEXAS, FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
 PLACES, INCLUDING BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
 EMPLOYEES ARE CUSTOMARILY POSTED.  THE DIRECTOR SHALL TAKE REASONABLE
 STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
 BY ANY OTHER MATERIAL.
 
    (C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
 COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 29, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
        NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
 
           THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
 
          EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
 
            UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 
                                 RELATIONS
 
    WE HEREBY NOTIFY EMPLOYEES OF THE AUSTIN SERVICE CENTER IN AUSTIN,
 TEXAS, THAT:
 
    WE WILL NOT CHANGE TOURS OF DUTY OF EMPLOYEES WITHOUT FIRST NOTIFYING
 THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 72, THE EXCLUSIVE
 REPRESENTATIVE OF OUR EMPLOYEES, AND AFFORDING SUCH REPRESENTATIVE THE
 OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
 REGULATIONS, ON THE IMPACT AND IMPLEMENTATION OF THE DECISION TO
 EFFECTUATE SUCH A POLICY.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    WE WILL NOTIFY THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER
 72 OF ANY INTENDED DECISION TO CHANGE THE HOURS OF DUTY OF EMPLOYEES
 AND, UPON REQUEST, MEET AND CONFER TO THE EXTENT CONSONANT WITH LAW AND
 REGULATIONS, ON THE IMPACT AND IMPLEMENTATION OF SUCH DECISION.
 
                            AGENCY OR ACTIVITY
 
    DATED:  . . . BY:  . . . SIGNATURE
 
    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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
 ADDRESS IS:  DOWNTOWN POST OFFICE STATION, BRYAN AND ERVAY STREETS, P.O.
 BOX 2640, DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS:  (214)
 767-4996.
 
    /1/ IN PERTINENT PART, 5 C.F.R. 702.307 PROVIDES:
 
    (2) BOTH PARTIES ARE ENTITLED TO PRODUCE WITNESSES AND TO INTRODUCE
 SIGNED SWORN STATEMENTS
 
    OR LETTERS OF INTERROGATORY.  THE APPEALS AUTHORITY IS NOT AUTHORIZED
 TO SUBPOENA
 
    WITNESSES.  ANY AGENCY THAT HAS EMP