11:0069(23)CA - IRS (District, Region, National Office Unit) and NTEU -- 1983 FLRAdec CA
[ v11 p69 ]
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).