10:0415(71)CA - Treasury, IRS Center, Atlanta, GA and NTEU -- 1982 FLRAdec CA
[ v10 p415 ]
The decision of the Authority follows:
10 FLRA No. 71 DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE CENTER ATLANTA, GEORGIA Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 4-CA-590 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had not engaged in an unfair labor practice under section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute), and recommending that the case be dismissed in its entirety. No exceptions were filed to the Judge's Decision. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, and noting particularly the absence of exceptions, the Authority hereby adopts the Judge's findings, conclusions, and recommendations. /1A/ ORDER IT IS HEREBY ORDERED that the complaint in Case No. 4-CA-590 be, and it hereby is, dismissed. Issued, Washington, D.C., October 29, 1982 Ronald W. Haughton, Chairman Henry B. Frazier III Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Harry Mason, Esq. For the Respondent Regina M. Kane, Esq. Brenda Green, Esq. For the General Counsel Federal Labor Relations Authority Before: SAMUEL A. CHAITOVITZ Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101 et seq. (hereinafter referred to as the Statute) and the Rules and Regulations of the Federal Labor Relations Authority, 5 C.F.R.Chapter XIV, Sec. 2410 et seq. Pursuant to a charge filed on September 9, 1980 by the National Treasury Employees Union (hereinafter called NTEU and Union) against the Department of the Treasury, Internal Revenue Service Center, Atlanta, Georgia (hereinafter called Respondent and IRS); a First Amended Charge filed on September 23, 1980; and a Second Amended Charge filed on October 3, 1980, the General Counsel of the Federal Labor Relations Authority by the Regional Director for Region 4 issued a Complaint and Notice of Hearing on October 20, 1980 alleging that Respondent violated Section 7116(a)(1) of the Statute by allegedly advising employee Rose Marie DeReimer, on three occasions, not to seek assistance from the Union without first consulting with Respondent. IRS filed an Answer on November 5, 1980 admitting certain factual allegations and denying the legal conclusions. A hearing in this matter was conducted before the undersigned in Atlanta, Georgia. The General Counsel of the Federal Labor Relations Authority and the IRS were represented and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence and to argue orally. Briefs were filed and have been fully considered. Based upon the entire record in this matter, my observation of the witnesses demeanor, and upon my evaluation of the evidence, I make the following: Findings of Fact NTEU is the exclusive collective bargaining representative for a unit consisting of, inter alia, Respondent's professional and non-professional employees at IRS' Atlanta Service Center. Employee DeReimer was a tax examiner in the Respondent's Collection Branch /1/ for two years, until June 29, 1980, when she was reassigned laterally to the Quality Review Staff with the encouragement of Quality Review Staff Manager Carol Thompson. DeReimer's duties in the Quality Review Staff consisted of identifying technical errors of tax examiners in the Collection Branch and "flagging" such errors. If a Collection Branch Manager disagreed with DeReimer's findings of error, the Collection Branch Manager took the matter up with DeReimer's Manager. In early July 1980, Manager Thompson advised the Quality Review Staff tax examiners, including Employee DeReimer, that Sue Harrington, then in IRS' management training program, would be acting as Quality Review Staff Manager while Manager Thompson was detailed out of the unit for six weeks. DeReimer became increasingly dissatisfied with her assignment to the Quality Review Staff. She had some differences with Acting Manager Harrington over the work DeReimer felt she was not receiving adequate training and she objected because after she identified errors in the matters she was reviewing, Harrington would delete them. The Union Shop Steward for the Quality Review Staff was Calvin Adams, the Union Steward for the Examination Branch. Regina Smith was the Union Shop Steward for the Collection Branch and was physically located near DeReimer's desk. In late July DeReimer began to consider the prospect of seeking a lateral reassignment to the Collection Branch and informally discussed this matter with Union Steward Smith. A. August 2, 1980 Meeting On August 2, 1980 Acting Manager Harrington asked Employee DeReimer to join her in the conference room of the Compliance Division. During the course of meeting DeReimer and Harrington discussed DeReimer's dissatisfaction with her assignment to the Quality Review Staff, her feeling she wasn't receiving sufficient training and other problems she was having with respect to her work performance. DeReimer advised Harrington that she was so unhappy that she was considering seeking reassignment out of Quality Review to her prior position in the Collection Branch and had been discussing this matter with her friend Regina Smith. Harrington advised DeReimer that before she did anything final or made any final decisions she shall give her present job a try for a little longer and wait a few weeks for Carol Thompson to return. Harrington encouraged DeReimer to discuss the problems with Thompson because they might be able to work something out. I have credited Harrington's version of this meeting rather than DeReimer's. Harrington appeared a more credible witness and her version seemed more reasonable and consistent with the other facts and circumstances. Thus, DeReimer's testimony that she told Harrington that she, DeReimer, had been talking to Regina Smith, Union Steward, about transferring back to the Collection Branch; that Harrington replied that DeReimer should not go to the Union first but should talk to the IRS first about her problems; that there are some aspects that management could handle; and that the Union should not get involved, is discredited. Regina Smith, in addition to being a Shop Steward, is a personal friend of DeReimer's and DeReimer's testimony indicates that she went to talk to Smith, not because she was a Union Shop Steward /2/ , but because DeReimer and Smith were personal friends and Smith had extensive knowledge concerning procedures for transferring. In this regard, it is noted that Harrington had just transferred to the I-95 Annex, was informed that Calvin Adams was the Union Steward for the Quality Review Staff, was, at that time, unaware that Smith was a Union Steward, and had seen Smith and DeReimer, presumably as friends, lunching and talking together. In light of all of the foregoing, in addition to the demeanor of the witnesses, I credit Harrington's version of the August 2 meeting. B. August 11, 1980 Meeting Several subsequent meetings occurred between Harrington and DeReimer during which Harrington pointed out what she felt were shortcomings in DeReimer's work performance. On August 11, 1980, at a meeting, Harrington advised DeReimer that if DeReimer did not improve on some of her alleged shortcoming and if the problems persisted Harrington would have to start documenting DeReimer's shortcomings. DeReimer was so upset by the conversation that without advising Harrington, DeReimer left her unit to talk to Regina Smith, who advised DeReimer to go to the nurse's station. The nurse advised Harrington that DeReimer was in the nurse's station. DeReimer then returned to her station and advised Harrington that she, DeReimer, was going to see Union Steward Calvin Adams. /3/ C. August 13 Meeting and the August 15 Memorandum: On August 13 DeReimer, at Adams' request, reduced to writing her version of the August 2 meeting. On that same day, at Adams' request, DeReimer, Thompson, and Adams met in the Conference Room to discuss Thompson's work expectations of DeReimer. Thompson read verbatim portions of an eight-item Expectation Memorandum, elaborating on each item. The Fifth Item states: 5. If you have a problem other than work, let me know at once. I may not need to know the problem and I may not be able to solve the problem, but I do expect you to inform me that you do have a problem and that you are going to talk to either the Union steward or the nurse. Problems that affect your performance concern me as a manager. DeReimer testified that Harrington stated that if DeReimer "had a personal problem . . . I should confront her first and that she necessarily didn't want to know what the problem was but if I had one, let her know before I went to the Union or went to the nurse or went out of the unit . . . " On August 14 DeReimer was asked to sign the Expectation Memorandum dated that day and a copy of that Memorandum was placed in DeReimer's 7B File. /4/ Discussion and Conclusions The credited version of the August 2, 1980 meeting does not contain any anti-Union comments by Harrington nor does it contain any expression that DeReimer should limit her contacts with Union or hesitate to seek Union assistance. The language of the August 13, 1980 meeting and the Expectation Memorandum, which is alleged to be unlawful, in effect merely requires DeReimer to advise her superior when she is leaving the work area. DeReimer was neither forbidden to go to the Union nor was she discouraged from going to the Union; rather she was instructed that when leaving the unit area, whether it be to go to the Union or the nurse, she was to go advise her superior. Such a requirement is merely an attempt by management to keep track of the location of employees during working hours. Such a limitation, absent additional coercion or interference, can hardly be found to be violative of Section 7116(a)(1) of the Statute. Cf. Oklahoma City Air Logistics Center, 2 FLRA No. 13 (1979). In light of the foregoing it is concluded that Respondent did not violate Section 7116(a)(1) of the Statute. Accordingly, I recommend the Authority adopt the following: ORDER It is hereby Ordered that the complaint in Case No. 4-CA-590 be, and hereby is, dismissed. SAMUEL A. CHAITOVITZ Administrative Law Judge Dated: July 1, 1981 Washington, DC /1A/ See Department of Defense, Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 7 FLRA No. 104 (1982); Army and Air Force Exchange Service (AAFES), Rocky Mountain Area Exchange No. 4125, Fort Carson, Colorado, 8 FLRA No. 94 (1982). --------------- FOOTNOTES$ --------------- /1/ Respondent's Compliance Division is composed of three branches, the Examination Branch, the Collection Branch, and Quality Review Staff. The incidents in this case took place at Respondent's location at the I-85 Annex.