[ v11 p69 ]
11:0069(23)CA
The decision of the Authority follows:
11 FLRA No. 23
INTERNAL REVENUE SERVICE
(DISTRICT, REGION, NATIONAL OFFICE UNIT)
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-1458
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record in this case, including the
parties' stipulation of facts, /1/ accompanying exhibits, and briefs
submitted by the Respondent, the Charging Party, and the General
Counsel, the Authority finds:
The complaint alleges that the Respondent violated section
7116(a)(1), (5) and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) /2/ by dealing directly and individually
with bargaining unit employees concerning terms and conditions of
employment in May 1980, in derogation of the Charging Party's status as
exclusive representative, and by denying the Charging Party the
opportunity to be represented at such formal discussions within the
meaning of section 7114(a)(1)(A). /3/ The Respondent admits it acted as
alleged, but takes the position that the interviews were not formal
discussions because the purpose was to verify the questions which a
sample of Examination Group Managers had completed. Additionally, the
Respondent contends that the task force interviews with bargaining unit
employees were not "negotiations" and therefore did not undermine the
exclusive bargaining representative.
The National Treasury Employees Union (the Union) is the exclusive
collective bargaining representative of four consolidated units of
certain professional and nonprofessional employees of the Internal
Revenue Service (the Respondent). The Union and the Respondent are
parties to a collective bargaining agreement which was effective at all
times material herein.
In May or June 1980, the Respondent conducted a study to analyze the
duties performed by Examination Group Managers who are nonbargaining
unit employees. The purpose of this study was to review administrative
or clerical duties performed by these managers which could detract from
their primary function in evaluating, training and supervising their
employees, and to determine whether or not any portion of the duties
which were being performed by the Group Managers should be performed by
Group Clerks who are bargaining unit employees.
By letter dated March 27, 1980, the Respondent notified the Union
that it intended to conduct a study analyzing the duties performed by
Examination Group Managers and, after analyzing this information, that a
task force would be sent into the field in or around May 1980 to
interview bargaining unit employees. By letter dated April 2, 1980, the
Union notified the Respondent that it opposed any attempt by the
Respondent to choose the employees to be interviewed, and requested that
a Union representative be present at these meetings. By letter dated
May 13, 1980, the Union repeated its request that, since interviews of
bargaining unit employees would be conducted by the task force, the
Union had an absolute right to be present at such formal discussions.
By letter dated June 16, 1980, the Respondent took the position that
these interviews were not formal discussions within the meaning of the
Statute and denied the Union's request to be present at such interviews.
A task force, consisting of supervisory and managerial employees, was
organized by the Respondent to conduct this study. From June 8 to June
22, 1980, two teams of task force members travelled to various districts
and regions of the Internal Revenue Service and interviewed a number of
individuals, including approximately 31 bargaining unit employees (Group
Clerks). The employees interviewed were chosen by district managers
either ahead of time or upon arrival of the task force members. Prior
to arriving in the districts, the task force members did not know who
they would be interviewing. In those cases where employees to be
interviewed were out on annual or sick leave on the day of the
interview, the district managers chose different employees to substitute
for the employees who were absent. No task force member interviewed any
employee from his own district.
At the beginning of these interviews, bargaining unit employees were
informed that information obtained would not be used for evaluation
purposes. No employee interviewed requested the presence of a Union
representative. During the interviews, the employees were asked
approximately 12 questions which had been prepared in advance by members
of the task force. They were asked what type of group they were in;
how much time they had in grade; how much training they had received;
how much time they spent on AIMS (Information Computer System); who
provided them with assistance on AIMS problems; if they had a choice,
whether they would spend more or less time on AIMS; what their
functions and major responsibilities were and what types of contact they
had with the Centralized Service Branch (which maintains the AIMS
system); when they consulted with their group managers and what types
of problems or concerns they took to their group managers; and whether
or not they had enough time in which to perform their duties, and
whether or not they were performing duties which, in their opinion,
should be performed by someone else. These questions were asked with a
view toward a possible reassignment of work from Group Managers to Group
Clerks and the possible creation of new AIMS coordinator positions to
perform AIMS duties and responsibilities.
As a result of this study, the task force prepared a report making
specific findings and recommendations. The specific findings of the
task force were:
a. Group managers spend an inordinate amount of time on AIMS
functions,
most of which are clerical.
b. The reaction to an AIMS coordinator position was positive.
c. Group managers who have lost access to an AIMS terminal maintain
that
their group effectiveness has suffered.
d. Group clerks do not receive adequate training. Recommendations of
the task force included the following:
a. AIMS coordinator positions should be established in all
Examination
Divisions.
b. Additional AIMS training should be developed for group
secretaries.
c. All groups of posts-of-duty should have access to an AIMS
terminal. No action has been taken by the Respondent as a result of the
foregoing recommendations.
The General Counsel contends that, by the foregoing conduct, the
Respondent failed to comply with section 7114(a)(2)(A) and thereby
violated section 7116(a)(1) and (8) of the Statute in denying the Union
the opportunity to be represented at formal discussions between
management representatives and bargaining unit employees. In this
regard, the General Counsel argues that one of the purposes of the
interviews was to determine whether a portion of the clerical and
administrative duties being performed by Group Managers could be
performed by Group Clerks, and therefore involved a possible
reassignment of duties; that such solicitation of unit employees'
opinions also involved a discussion concerning the creation of new
positions and the need for additional training, matters clearly covered
in Article 12 of the parties' collective bargaining agreement; /4/ and
that these direct communications with unit employees involved general
working conditions and therefore constituted formal discussions with
employees at which the Union was entitled to be represented. The
General Counsel also contends that the Respondent violated section
7116(a)(1) and (5) of the Statute when it bypassed the Union and dealt
directly with unit employees concerning the foregoing matters.
The Respondent contends that the interviews were not formal
discussions within the meaning of section 7114(a)(2)(A) of the Statute
because it did not intend for the meetings to be formal and the content
and circumstances surrounding the meetings did not render them formal
discussions. In this connection, the Respondent argues that the purpose
of the study focused on the role of Examination Group Managers, who are
nonbargaining unit employees, in order to analyze the duties performed
by them and to determine whether the information obtained from
interviews with management officials was complete and accurate. The
Respondent further argues that the questions which the Group Clerks were
asked did not amount to an attempt to bypass the Union and bargain
directly with the employees, did not urge the employees to put pressure
on their Union representatives to take a certain course of action, and
did not threaten or promise benefits to the employees. Rather, the
Respondent contends, this type of study is one of management's
"unfettered rights" and did not involve general working conditions.
In the circumstances of this case, including the nature of the
individual discussions, the subject matter discussed, and the impact
upon bargaining unit employees, the Authority finds the interviews
herein to be formal discussions concerning general conditions of
employment within the meaning of section 7114(a)(2)(A) of the Statute.
/5/ Thus, the interviews were initiated by management; were conducted
by management officials with a number of unit employees; required
attendance by those employees selected; followed a formal agenda; and
centered around subject matter involving the employees' general
conditions of employment. Accordingly, it follows that the Union was
entitled to be present at such discussions, and that the Respondent
violated section 7116(a)(1) and (8) of the Statute by denying the
Union's request to be present. /6/
However, the Authority finds that the Respondent did not bypass the
Union by meeting directly with unit employees and therefore did not also
violate section 7116(a)(5) of the Statute. The interviews were held
solely for the purpose of determining whether certain information
obtained from its group managers was accurate and obtaining other
factual information. The interviews in no way undermined the status of
the Union as the exclusive representative of the employees. The
Authority therefore finds that the General Counsel has failed to
establish an unlawful bypass in violation of section 7116(a)(1) and (5)
of the Statute. /7/ Accordingly, that allegation of the complaint shall
be, and hereby is, dismissed.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the Internal Revenue Service (District,
Region, National Office Unit), shall:
1. Cease and desist from:
(a) Failing or refusing to give the employees' exclusive
representative, the National Treasury Employees Union, the opportunity
to be represented at formal discussions with bargaining unit employees
at which personnel policies and practices or other general conditions of
employment are discussed.
(b) In any like or related manner interfering with, restraining, or
coercing any employee in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Give the National Treasury Employees Union the opportunity to be
represented at formal discussions with bargaining unit employees at
which personnel policies and practices or other general conditions of
employment are discussed.
(b) Post at all facilities of the Internal Revenue Service (District,
Region, National Office Unit), copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms they shall be signed by the Commissioner or his designee 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.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, 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., January 20, 1983
Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY
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 OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to give the employees'exclusive
representative, the National Treasury Employees Union, the opportunity
to be represented at formal discussions with bargaining unit employees
at which personnel policies and practices or other general conditions of
employment are discussed.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce any employee in the exercise of any right under the Federal
Service Labor-Management Relations Statute.
WE WILL give the National Treasury Employees Union the opportunity to
be represented at formal discussions with bargaining unit employees at
which personnel policies and practices or other general conditions of
employment are discussed.
(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, Region III, Federal Labor Relations Authority, whose address
is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone
number is: (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ On October 18, 1982, the General Counsel filed a motion to
withdraw the stipulation entered into by all parties and previously
transferred to the Authority, on the sole ground that Department of
Health and Human Services, Social Security Administration, Bureau of
Field Operations, San Francisco, California, 10 FLRA No. 24 (1982) is
dispositive of this case. The Charging Party thereafter filed an
opposition. The Authority concludes that, at this state of the
proceeding, the purposes and policies of the Statute would be best
effectuated by issuing a decision herein. Accordingly, the General
Counsel's motion to withdraw the stipulation is denied.
/2/ Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
. . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/3/ Sec. 7114. Representation rights and duties
. . . .
(a)(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
(A) any formal discussion between one or more representatives
of the agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy
or practices or other general condition of employment(.)
/4/ In regard to training, Article 12 of the parties' collective
bargaining agreement provides in part:
Section 1
The Employer and the Union agree that the training and
development of employees within the Unit is a matter of
significant importance. In conjunction with this goal, the
Employer will, as funds permit, make available to all employees
the training he deems necessary for the performance of the
employee's presently assigned duties or proposed assignment. The
Employer agrees to encourage and assist employees in planning and
following a plan of self development.
/5/ With regard to some of the factors considered by the Authority in
determining whether a meeting constitutes a formal discussion, see
Department of Health and Human Services, Social Security Administration,
Bureau of Field Operations, San Francisco, California, 10 FLRA No. 24
(1982). See also Department of Health and Human Services, Social
Security Administration, Bureau of Field Operations, San Francisco
Region, 10 FLRA No. 25 (1982).
/6/ See Department of Health, Education and Welfare, Region IV,
Atlanta, Georgia and Department of Health and Human Services, Region IV,
Atlanta, Georgia, 5 FLRA No. 58 (1981). See also Norfolk Naval
Shipyard, Portsmouth, Virginia, 6 FLRA No. 22 (1981); Internal Revenue
Service, Washington, D.C., 4 FLRA No. 68 (1980).
/7/ See Kaiserslautern American High School, Department of Defense
Dependents Schools, Germany North Region, 9 FLRA No. 28 (1982).