12:0324(74)CA - IRS Seattle District and IRS San Francisco District and IRS Los Angeles District and IRS Washington, DC and NTEU -- 1983 FLRAdec CA



[ v12 p324 ]
12:0324(74)CA
The decision of the Authority follows:


 12 FLRA No. 74
 
 INTERNAL REVENUE SERVICE
 SEATTLE DISTRICT
 Respondent
 
 and
 
 INTERNAL REVENUE SERVICE
 SAN FRANCISCO DISTRICT
 Respondent
 
 and
 
 INTERNAL REVENUE SERVICE
 LOS ANGELES DISTRICT /1A/
 Respondent
 
 and
 
 INTERNAL REVENUE SERVICE
 WASHINGTON, D.C.
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 9-CA-882
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondents had engaged in
 the unfair labor practices alleged in the complaint and recommending
 that they be ordered to cease and desist therefrom and take certain
 affirmative action.  Thereafter, the Respondents filed exceptions to a
 portion of the Judge's Decision and the General Counsel and the Charging
 Party filed oppositions to the Respondent's exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (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 in this case, the Authority
 hereby adopts the Judge's findings, conclusions and recommendations.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, it is hereby ordered that the Internal
 Revenue Service, Seattle District, the Internal Revenue Service, San
 Francisco District and the Internal Revenue Service, Washington, D.C.
 shall:
 
    1.  Cease and desist from:
 
    (a) Failing to comply with the provisions of Section 7115 of the
 Federal Service Labor-Management Relations Statute by refusing to honor
 a valid written assignment from Darlene T. Bulter and Charles Yim, or
 any other unit employee, for the payment of regular and periodic dues to
 the National Treasury Employees Union, or any other exclusive
 representative.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Reimburse the exclusive representative, National Treasury
 Employees Union, in an amount equal to the regular and periodic dues it
 would have received from the pay of Darlene T. Butler and Charles Yim
 since February 22, 1981, but did not receive as a result of the unlawful
 refusal to honor their valid written allotments for such purposes.
 
    (b) Commencing with the first pay period after the date of this
 Order, deduct regular and periodic dues from the pay of Darlene T.
 Butler and Charles Yim and remit such dues to the National Treasury
 Employees Union.
 
    (c) Post at its facilities in Seattle, Washington, and San Francisco,
 California 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 appropriate representatives of the Respondents
 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.
 
    (d) Notify the Regional Director, Region IX, Federal Labor Relations
 Authority, in writing, within 30 days of the date of this Order, as to
 what steps have been taken to comply herewith.  
 Issued, Washington, D.C., July 21, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, 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 to comply with the provisions of Section 7115 of the
 Federal Service Labor-Management Relations Statute by refusing to honor
 a valid written assignment from Darlene T. Butler and Charles Him, or
 any other unit employee, for the payment of regular and periodic dues to
 the National Treasury Employees Union, or any other exclusive
 representative.  WE WILL NOT in any like or related manner interfere
 with, restrain, or coerce our employees in the exercise of their rights
 assured by the Statute.  WE WILL reimburse the exclusive representative,
 National Treasury Employees Union, in an amount equal to the regular and
 periodic dues it would have received from the pay of Darlene T. Butler
 and Charles Yim since February 22, 1981, but did not receive as a result
 of the unlawful refusal to honor their valid written allotments for such
 purpose.  WE WILL, commencing with the first pay period after the date
 of the Order issued by the Federal Labor Relations Authority, deduct
 regular and periodic dues from the pay of Darlene T. Butler and Charles
 Yim and remit such dues to the National Treasury Employees Union.
                                       (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 IX,
 Federal Labor Relations Authority, whose address is:  530 Bush Street,
 Suite 542, San Francisco, California 94108 and whose telephone number
 is:  (415) 556-8105.
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 9-CA-882
 
    Herwood R. Roberson, Esq.
       For the Respondent
 
    Stefanie Arthur, Esq.
       For the General Counsel
 
    Lucinda Bendat, Esq.
       For the Charging Party
 
    Before:  WILLIAM NAIMARK
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    Pursuant to a Complaint and Notice of Hearing issued on March 22,
 1982 by the Acting Regional Director for the Federal Labor Relations
 Authority, San Francisco, California region, a hearing was held before
 the undersigned on June 16, 1982 at San Francisco, California.
 
    This proceeding arose under the Federal Service Labor-Management
 Relations Statute (herein called the Statute or Act).  It was based on a
 second amended charge filed by National Treasury Employees Union (herein
 called NTEU or the Union) against the Internal Revenue Service (IRS),
 Washington, D.C. and the Internal Revenue Service (IRS), Seattle, San
 Francisco, and Los Angeles Districts (herein collectively called
 Respondents).
 
    The Complaint alleged, in substance, that on or about February 22,
 1981 Respondents IRS and IRS Seattle unilaterally terminated previously
 authorized Union dues allotment of employee Darlene T. Butler without
 the said employee having revoked authorization for said dues allotment;
 that on or about February 22, 1981 Respondents IRS and IRS San Francisco
 unilaterally terminated previously authorized Union dues allotment of
 employee Charles Yim without the said employee having revoked
 authorization for said dues allotment;  that on or about April 19, 1981
 Respondents IRS and IRS Los Angeles unilaterally terminated previously
 authorized Union dues allotment of employee Paul Johnson, and in April
 or May, 1981 unilaterally deducted from the Union's dues allotment
 monies equal to 13 pay periods of Union dues for Johnson /1/ - all in
 violation of Section 7115(a)(1), (5), and (8) of the Statute.
 
    Respondents filed an answer, dated April 13, 1982, to the Complaint
 in which they admitted terminating the dues allotments of the
 aforementioned employees, as well as deducting the said monies from the
 Union's dues allotment, without the said employees having revoked
 authorization for the allotment.  The answer, however, denied the
 commission of any unfair labor practices.
 
    All parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter briefs were filed with the
 undersigned which have been duly considered.
 
    Upon the entire record /2/ herein, from my observation of the
 witnesses and their demeanor, and from all of the testimony and evidence
 adduced at the hearing, I make the following findings and conclusions:
 
                            Findings of Fact.
 
    1.  At all times material herein the Union has been, and still is,
 the exclusive bargaining representative for all professional and
 nonprofessional employees of the Internal Revenue Service, District,
 Region and National office.  A certification for the aforesaid
 consolidated unit was issued in 1977.  It excluded therefrom, in
 addition to certain specified classes of employees, all management
 officials, supervisors, and confidential employees.  /3/
 
    2.  Prior to July, 1979 Darlene T. Butler (herein called Butler)
 occupied the position of Management Assistance, GS-5, in the IRS
 Seattle, Washington District.  While holding that position, which was in
 the bargaining unit and under the Space Section of the Facilities
 Management Branch, Butler signed a form authorizing the agency to
 withhold Union dues from her paycheck.
 
    3.  In or about July, 1977 Butler assumed the position of Management
 Analyst (official title)/Space Analyst (organizational title) in the
 said Seattle District.  At no time, while occupying this position, did
 Butler revoke her dues allotment authorization.
 
    4.  In 1976 Charles Yim (herein called Yim) was a Tax Examiner, GS 6,
 in the Agency's Centralized Services Branch of the Audit Division.
 While in said position, which was in the bargaining unit, Yim also
 authorized the withholding by the Agency of Union dues from his
 paycheck.
 
    5.  On October 21, 1979 Yim assumed the position of Management
 Analyst (official title)/Space Planner (organizational title).  This
 position was under the Space Management and Information Systems Section
 of the Facilities Management Branch, San Francisco District.  There are
 four such Space Planners in this Section and Yim is assigned the South
 Bay Area.  At no time, while occupying this position, did Yim revoke his
 dues allotment authorization.
 
    6.  The Position Description for Management Analyst (Space Analyst),
 occupied by Butler /4/ at the IRS Seattle District, provided, inter
 alia, that the incumbent pursue duties /5/ as follows:
 
          (a).  Responsible for District-wide Space Management and Safety
       programs.  Conducts studies and performs analysis to improve
       effectiveness of the programs.  Implements guidelines to National,
       Regional and General Services Administration offices.
 
          (b).  Acts as a technical resource for District Director,
       Division Chiefs and Managers.
 
          (c).  Represents the District as a liaison with GSA.
 
          (d).  Develops intermediate and long range plans and work
       schedules including acquisition or release of space based on
       personnel staffing, operational activities and National and
       Regional goals.
 
          (e).  Recommends establishment of new offices or closing of old
       offices as needed.
 
          (f).  Plans segments of studies, surveys organizational space
       requirements, and follows up on implementations.
 
          (g).  Participates in evaluation of effectiveness of space
       designs upon the operational activities of the organizations.
 
          (h).  Prepares written reports of findings, applying knowledge
       of substantive nature pertaining to space management concepts, and
       recommends for improvement of Space Management.
 
          (i).  Completes space proposals for District and Regional
       approval including furniture and construction floor plans.
 
          (j).  Reviews bids and potential space proposed by GSA - visits
       buildings to determine if space is suitable and makes
       recommendations on acceptance.
 
          (k).  Studies and analyzes equipment to determine requirements
       for wiring, ventilation, sound control, floor load and lighting
       needs.
 
          (l).  Plans for construction, enlargement, remodeling or
       reduction of offices.
 
          (m).  Attends meetings with program officials to present
       findings and work out space or program problems.
 
          (n).  Prepares day-by-day work assignments for management
       assistant, /6/ where such an assistant is assigned.
 
          (o).  In respect to safety, the incumbent is responsible for
       inspecting facilities re compliance with safety requirements,
       initiates action to meet safety standards, processes accident
       reports and recommends action, promotes safety through various
       means, and acts as a technical resource to Seattle District Safety
       Advisory Committee.
 
    7.  The Position Description for Management Analyst (Space Planner),
 occupied by Charles Yim at the IRS San Francisco District, provided,
 inter alia, that the incumbent pursue duties /7/ as follows:
 
          (a) Based on observation of work processes and through
       discussions with managers and employees, he determines efficient
       office layouts suitable for needs of the organization.
 
          (b) Develops arrangement drawings and layouts for interior of
       office space, as well as plans showing location of work stations,
       corridors, and equipments, placement of telephones, etc.
 
          (c) Develops plans showing, location of work stations,
       corridors, office equipment, etc.
 
          (d) Develops plans and designs for employees' work stations and
       spaces.
 
          (e) Participates in estimating costs for office conversions;
       tours offices with GSA and recommends selection of office sites.
 
          (f) Assures that contractors perform to specifications on such
       matters as painting walls, installing carpets and arranging
       furniture.
 
          (g) Provides advice to district officials, review and evaluates
       procedures and services.  /8/
 
    8.  Record facts reflect that both Butler and Yim, as Management
 Analysts /9/ perform substantially all of the duties set forth in their
 job descriptions.  In general, they both are responsible for handling,
 in their respective areas, problems concerning space, albeit the
 acquisition, expansion, termination, or modification of spatial needs.
 To this extent, each divides his or her time about equally between space
 planning and program maintenance.
 
    9.  While the M/A must obtain approval of his recommendations re
 space, the individual does attend meetings with chiefs of a Section or
 Region and offers technical assistance.  However, the M/A does not
 attend management training sessions.  He does, however, have access to
 information re reorganization within IRS involving creation of new
 divisions or abolition of old ones, as well as the moving of office
 locations.
 
    10.  The M/A may make minor changes (adding a desk) without formal
 approval;  he may request GSA to make certain repairs (electrical
 outlets, torn carpet) without requiring supervisor's /10/ approval.
 Although the M/A may exercise independent judgment in performing his
 duties, as set forth hereinabove, tasks of a substantive nature which
 are to be undertaken must be cleared with the supervisor.  The M/A is
 responsible for soliciting the approval of all parties affected by major
 changes, including other managers, Division Chiefs, and the Union
 stewards.  In this respect he must deal with various managers at posts
 of duty as well as at headquarters.
 
    11.  The M/A is not involved in negotiations with the bargaining
 representative concerning labor relations.  However, he does inform the
 Union of any significant changes involving space or security.  If the
 M/A makes proposals re space modifications, he will discuss these with
 the Union and, where involved, show floor plans to the bargaining agent.
  When the M/A has worked on a particular project, he may attend a
 meeting held by the Labor-Management Relations Committee.  In the event
 of a safety hazard, the M/A might accompany the union steward to check
 into it.  A report to management will then be prepared by the M/A.
 
    12.  By letter dated January 5, 1981 Steven C. Weaver, Respondents'
 Labor Relations Specialist, notified Butler and 11 other employees that
 they occupied a nonbargaining unit position;  that actions would be
 initiated to terminate their union dues withholding.
 
    13.  By letter dated January 22, 1981 Respondents' John Moore, Chief,
 Labor Relations, notified N. C. Nichols, President, NTEU Chapter 20 at
 San Francisco, that Charles Yim and nine other employees were
 erroneously on dues withholding as managerial personnel;  that their
 dues withholding would be terminated and effective on the February 8,
 1981 pay period.
 
    14.  On February 22, 1981 Respondent IRS Seattle terminated the dues
 allotment of Butler who, on that date, was a GS-7 M/A;  Respondent San
 Francisco on February 22, 1981 terminated the dues allotment of Yim, who
 on that date, was a GS-9 M/A.  The basis for these actions rested on the
 conclusion that both Butler and Yim were managerial personnel and not
 within the bargaining unit.
 
                                Conclusions
 
    It is contended by the General Counsel that the respective
 Respondents violated Section 7116(a)(1), (5) and (8) of the Statute by
 unlawfully terminating the dues deductions for employees Butler and Yim.
  These individuals, who held positions of Management Analyst (M/A) -
 Space Analyst and Management Analyst (M/A) - Space Planner respectively,
 are deemed to be within the bargaining unit as certified in 1977.  Thus,
 it is alleged Respondents acted illegally when it discontinued
 withholding their union dues in the absence of an authorized revocation
 from these employees.
 
    Respondents take issue with the foregoing contentions and deny any
 wrongdoing by the termination of said dues deductions.  In the main they
 assert (1) it is not proper to litigate unit determinations, which is
 necessary herein before a violation may be found, in unfair labor
 practice proceedings;  (2) assuming arguendo, the unit placement of the
 M/A is properly litigable herein, both Butler and Yim as occupants of
 such position are managerial personnel and/or confidential employees so
 as not to be within bargaining unit.  Accordingly, it is argued
 Respondents rightfully terminated the dues deductions for said
 individuals despite the absence of any revocation from either person.
 
    (1) Several decisions by the Authority have recognized the propriety
 of making a unit determination in an unfair labor practice proceeding.
 Thus, in The Adjutant General-Georgia, Georgia National Guard,
 Department of Defense, Atlanta, Georgia, 2 FLRA No. 92 the Activity
 added certain supervisory duties to a position described as small shop
 supervisors.  Since management deemed the latter to occupy a supervisory
 status, it suspended dues withholding for said individuals.  The union
 challenged this suspension via a complaint alleging an unfair labor
 practice against the Activity.  The Authority found that, except for one
 employee, all these particular small shop personnel were supervisors;
 that the complaint was dismissed in that regard.  /11/ To the same
 effect see North Carolina Air National Guard, Charlotte, North Carolina,
 4 FLRA No. 44 (involving supervisory status of small shop chiefs).
 
    Respondents, while conceding the issuance of the cited decisions by
 the Authority, argue that these are distinguishable from the case at
 bar.  They stress the fact that the employer in said cases altered or
 changed the status of the positions in question, whereas Respondents
 herein never modified or added to the duties of the M/A position.
 Further, management in the instant matter adverts to the fact that it
 never changed its contention, or departed from its assumption-- not
 challenged by the Union, that the M/A is outside the bargaining unit.
 Accordingly, it is urged that the prior Authority decisions involving
 unit determinations in an unfair labor practice matter involved special
 circumstances justifying a different result in the case at bar.
 
    While it may well be that Respondents did deem the M/A to be excluded
 from the bargaining unit and the Union did not challenge the eligible
 list of voters in the 1977 election, I do not subscribe to the view that
 this bars a unit determination herein.  The classification of M/A was
 not specifically excluded from the appropriate unit in the
 certification.  Further, the record herein does not reflect that the
 Union agreed or stipulated that the M/A was a managerial employee and
 excluded from the unit.  Thus, the absence of this position from the
 eligible voting list in 1977 does not, in my opinion, suffice to depart
 from the case law which permits unit determinations in unfair labor
 practice proceedings.  Neither do I accept the contention that, since
 unit determinations are not relitigable, the present controversy should
 bar a unit consideration.  The status of M/A was never litigated by the
 parties nor was a determination made with respect thereto in the
 representation proceeding.
 
    Moreover, the fact that, unlike herein, management in the cited
 cases, supra, took action which raised the status of employees to
 supervisors-- and thus put them outside the unit-- does not warrant a
 different conclusion.  Under Section 7115(b)(1) of the Statute an
 allotment for the deduction of dues terminates when "the agreement
 between the agency and the exclusive representative involved ceases to
 be applicable to the employee." A reasonable interpretation of this
 statutory language requires the conclusion that when the particular
 employee, at any time, is not covered by the agreement, the termination
 of dues is warranted.  Contrariwise, if the employee classification is,
 during the term of the agreement, properly included within the unit, it
 must follow that no termination of dues is justified without a
 revocation of the unit employee.  Thus, the fact that management did, or
 did not, change the incumbent's duties should not affect the right to
 litigate in the unfair labor practice case whether the employee is
 within the appropriate unit.
 
    Accordingly, I conclude that the question as to whether the M/A
 should be deemed within the unit and covered by the agreement between
 the parties may, as a preliminary consideration to whether the
 termination of their dues withholding was proper, be determined herein.
 
    (2) The critical issue now to be determined is whether M/A Butler and
 M/A Yim were in fact managerial or confidential employees when the
 respective Respondents unilaterally terminated the dues withholding for
 each individual.  If it be concluded that these employees were not part
 of management, or employed in a confidential capacity, such termination
 without authorization constituted noncompliance with Section 7115(a)
 /12/ of the Statute and is deemed violative of Section 7116(a)(1) and
 (8).  National Archives & Records Service and National Archives Trust
 Board, General Services Administration, Washington, D.C. 9 FLRA No. 50;
 Defense Logistics, et al., 5 FLRA No. 21.
 
    It is clear that under Section 7103(a)(2) of the Statute a management
 official is not viewed as an 'employee' and thus would be outside an
 appropriate unit.  Under Section 7103(a)(11) a management official means
 "an individual employed by an agency in a position the duties and
 responsibilities of which require or authorize the individual to
 formulate, determine, or influence the policies of the agency."
 Considerable attention was devoted to this definition by the Authority
 in Department of the Navy, Automatic Data Processing Selection Office, 7
 FLRA No. 24 which involved a unit clarification determination.  It was
 stated therein that a management official under the aforesaid sections
 of the Statute includes those who:  (1) create, establish or prescribe
 general principles, plans or courses of action for an agency;  (2)
 decide upon or settle upon general principle, plans or courses of action
 for an agency;  or (3) bring about or obtain a result as to the adoption
 of general principles, plans or courses of action for an agency.
 
    In the brief Respondents lay stress upon the fact that the M/A, after
 developing and evaluating proposals, advises management on improving
 work methods and procedures as well as management controls.  Further,
 they advert to the fact that the M/A makes recommendations which are
 normally not changed;  that the M/A serves as the agency's liaison with
 GSA in selecting facilities;  and the M/A exercises considerable
 independence of action in pursuing his duties.
 
    Applying the yardsticks enunciated for determining whether an
 individual is, in truth, a management official, I am persuaded that
 M/AButler and M/A Yim are not managerial individuals.  The record
 reveals that they are primarily space analysts or planners, whose
 expertise is utilized by the agency when the latter makes decisions as
 to increasing, modifying, or releasing existing space facilities.  In
 connection therewith, the M/A may design offices and assure that the
 space is utilized in proper fashion.  Nevertheless, any significant
 change in space plans require approval from the office manager, the
 Division Chief and the District Director.  The floor plans prepared by
 the M/A attest to his expertise in the field, but they must be approved
 by the higher echelon.  The records of space kept by the M/A are
 intended to insure maintenance.  Further, the duties concerned with
 safety involve, for the most part, inspection of facilities to assure
 compliance with safety precautions.  Thus, it becomes apparent to the
 undersigned that Butler and Yim are valuable aids to management in
 planning, developing, analyzing, and implementing space requirements for
 their respective Districts.  However, this is not, in my opinion, the
 kind of work which creates, settles or brings about the agency's general
 plans or course of action.  The position is akin, in this respect, to
 the Computer Equipment Analyst in Department of the Navy, Automatic Data
 Processing, supra, which the Authority characterized as a valuable
 expert or professional whose actions assist-- but do not shape--
 policies in connection with procurement.
 
    It is true that the M/A exercises a certain degree of independent
 judgment in making determinations re space needs of the agency.
 Moreover, the M/A is a representative of the employee when meeting with
 GSA in respect to space requirements.  Nevertheless, such role occupied
 by this employee is not analogous to a professional expert, upon whose
 advice management depends considerably.  I agree with General Counsel
 that the M/A is more of a Technical Assistant to management than a
 managerial employee.  Reviewing of the basic duties of this individual,
 I am constrained to conclude that essentially the M/A does not formulate
 or determine Respondents' policies.  See General Services
 Administration, National Archives and Records Service, Washington, D.C.,
 8 FLRA No. 73 (involving Management Analyst Coordinators).  The Analysts
 in the cited case were deemed by the Authority to assist in
 implementing, rather than shaping, management's policy.  Further, where
 the Analyst's role involved rendering resource information or
 recommendations, rather than active participants in ultimate
 determinations, he was not found to be a managerial employee.  The same
 was true in Department of Defense, Department of the Army, et al., 8
 FLRA No. 127 where alleged management officials (including management
 analysts( were found not to be managerial employees.  As here, these
 individuals were engaged primarily in enforcement and implementation of
 higher level policies.  Their recommendations are advisory in nature and
 go through several supervisory levels.  I conclude that the same holds
 true in the case at bar with respect to M/A Butler and M/A Yim and,
 accordingly, find they were not managerial officials when Respondents
 terminated their dues withholding on February 22, 1981.
 
    The employer herein also maintains that the M/A is a 'confidential'
 employee within the meaning of Section 7103(a)(13) of the Statute.
 Thus, it argues, Butler and Yim are not properly in the unit and the
 termination of dues withholding for each was proper.  In this respect,
 Respondents cite General Services Administration, National Archives and
 Records Service, Washington, D.C., supra, where the Authority found a
 Management Analyst, GS 13, Program Management and Coordination Division
 to be a "confidential employee".
 
    Under the Statute a confidential employee is described as "an
 employee who acts in a confidential capacity with respect to an
 individual who formulates or effectuates management policies in the
 field of labor-management relations".  Respondents contend that the
 M/Aherein deal with space utilization requirements;  that these are
 sensitive issues in the field of labor relations;  and, since the M/A
 meets with the Union re changes to be made in this area, his role falls
 within the definition of "confidential employee".  I do not agree.
 Neither Butler nor Yim, in talking to union officials, plays any part in
 formulating management policies in labor-management relations.  They are
 not concerned with grievances, arbitration, or other matters pertaining
 to dealings between management and employees, nor are they involved in
 bargaining between the agency and the Union.  While the M/Amay discuss
 floor plans with the union representatives, in order to ascertain the
 position of the latter in regard thereto, this discussion does not
 concern unit determinations, contract proposals, unfair labor practices,
 or collective bargaining matters.  Moreover, mere access by the M/A to
 information, proposals, and plans with respect to space modifications--
 which may be transmitted to the Union-- does not warrant the conclusion
 that he acts in a 'confidential' capacity.  /13/ See Red River Army
 Depot, Texarkana, Texas, 2 FLRA No. 82.
 
    Accordingly, and on the basis of the foregoing, I am satisfied that
 neither Darlene T. Butler, Management Analyst (Space Analyst) nor
 Charles Yim, Management Analyst (Space Planner) was a managerial or
 confidential employee on February 22, 1981;  that the termination of
 their dues withholding without proper authorization was violative of
 Section 7116(a)(1) and (8) of the Statute.  /14/
 
                                  Remedy
 
    In resisting a status quo ante remedy herein Respondents urge that a
 good faith doubt existed concerning the status of the M/A herein.  Thus,
 it is contended, the termination of dues allotment by the employer was
 not the type of conduct which should warrant such relief.  Respondents
 allude to the case of The Adjutant General - Georgia, Georgia National
 Guard, Department of Defense, 2 FLRA 92.
 
    While it is true that reimbursement was not ordered in the cited
 case, the latter arose under Executive Order 11491, as amended, and the
 Assistant Secretary concluded such a remedy was not necessary therein.
 However the instant matter is covered by Section 7115 of the Statute
 which spells out, in contrast to the Executive Order, the obligations of
 the agency in regard to allotments which must be made to representatives
 upon proper authorization by an employee.  Further, most recent
 determinations by the Authority have ordered reimbursement to the union
 of dues where the agency unlawfully terminated the withholding thereof.
 Defense Logistics Agency, 5 FLRA 21;  National Archives and Records
 Service, et al., 9 FLRA No. 50.
 
    The Authority took pains in the Defense Logistics case, supra, to
 distinguish the facts therein from those found in Georgia National
 Guard, supra.  It mentioned that the latter case involved a change in
 circumstances-- the assignment of supervisory responsibilities to 21 of
 22 small shop chiefs which resulted in their exclusion from the
 bargaining unit.  Thus, the reimbursement of dues to the bargaining
 agent was not warranted since the suspension of dues withholding for
 most all employees was proper.  No such change in duties by management
 resulted herein which excluded Butler and Yim from the bargaining unit.
 The following language employed by the Authority in the Defense
 Logistics case reflects that restitution of such dues to the bargaining
 agent will normally be required:
 
          "In the Authority's view, it would promote the purposes of the
       Statute in the circumstances of the instant case to modify the
       remedial order recommended by the Administrative Law Judge so as
       to require Respondents to reimburse AFGE in the manner stated
       above . . . the language and legislative history of Section
       7115(a) clearly reflect the intent of Congress to give employees
       in units of exclusive recognition the sole discretion whether to
       authorize union dues deduction from their pay, and to require
       agencies to honor such authorizations."
 
 Moreover, the most recent decision by the Authority, National Archives
 and Records Service et al. supra, ordered the employer therein to
 reimburse the exclusive representative where it removed an employee from
 dues withholding.  The respondent took the position that the employee
 was a supervisor.  Since it was conceded the individual was not a
 supervisor, and no revocation had been executed by him, the employer was
 directed to honor the withholding authorization, and reimburse the union
 in an amount equal to the dues the representative would have received
 but for the unlawful refusal to honor said dues withholding
 authorization.
 
    Thus, I feel bound by the aforesaid decisions in this regard to grant
 the remedy requested by the General Counsel.  Accordingly, I conclude
 that a proper remedy herein requires that Respondents reimburse the
 Union in an amount equal to the dues the latter would have received from
 the pay of Darlene T. Butler and Charles Yim, but did not receive as a
 result of the unlawful refusal to honor the written allotments of said
 employees for such purpose.  /15/
 
    Having found that Respondent violated the Statute as aforesaid, I
 recommend the Authority adopt the following order:
 
                                   ORDER
 
    Pursuant to Section 7118(a)(7) of the Federal Service
 Labor-Management Relations Statute and Section 2423.29 of the Rules and
 Regulations, it is hereby ORDERED that the Internal Revenue Service,
 Seattle District and Internal Revenue Service, San Francisco District,
 and Internal Revenue Service, Washington, D.C., shall:
 
    1.  Cease and desist from:
 
          (a) Refusing to comply with the provisions of Section 7115 of
       the Federal Service Labor-Management Relations Statute by refusing
       to honor a valid written assignment from Darlene T. Butler and
       Charles Yim, or any other unit employee, for the payment of
       regular and periodic dues to National Treasury Employees Union, or
       any other exclusive representative.
 
          (b) Interfering with, restraining, or coercing unit employees
       by refusing to honor and accept a valid written assignment from
       Darlene T. Butler and Charles Yim, or any other unit employee, for
       the payment of regular and periodic dues to National Treasury
       Employees Union, or any other exclusive representative.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing any employee in the exercise of any right
       assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Reimburse the exclusive representative, National Treasury
       Employees Union, in an amount equal to the regular and periodic
       dues it would have received from the pay of Darlene T. Butler and
       Charles Yim, since February 22, 1981, but did not receive as a
       result of the unlawful refusal to honor their valid written
       allotments for such purpose.
 
          (b) Commencing with the first pay period after the date of this
       Order, deduct regular and periodic dues from the pay of Darlene T.
       Butler and Charles Yim and remit such dues to National Treasury
       Employees Union.
 
          (c) Post at its facilities in Seattle, Washington, San
       Francisco, California, and Washington, D.C. 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 Director of the Hospital and 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.  The Commander shall take reasonable steps to
       insure that such notices are not altered, defaced, or covered by
       any other material.
 
          (d) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region IX, Federal
       Labor Relations Authority, in writing, within 30 days from the
       date of the Order, as to what steps have been taken to comply
       herewith.
 
                                       WILLIAM NAIMARK
                                       Administrative Law Judge
 
 Date:  October 25, 1982
       Washington, D.C.
 
                                APPENDIX A
 
                          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
 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT refuse to comply with the provisions of Section 7115 of the
 Federal Service Labor-Management Relations Statute by refusing to honor
 a valid written assignment from Darlene T. Butler and Charles Yim, or
 any other unit employee, for the payment of regular and periodic dues to
 National Treasury Employees Union, or any other exclusive
 representative.  WE WILL NOT interfere with, restrain, or coerce unit
 employees by refusing to honor and accept a valid written assignment
 from Darlene T. Butler and Charles Yim, or any other unit employee, for
 the payment of regular and periodic dues to National Treasury Employees
 Union, or any other exclusive representative.  WE WILL NOT in any like
 or related manner interfere with, restrain, or coerce any employee in
 the exercise of any right assured by the Statute.  WE WILL reimburse the
 exclusive representative, National Treasury Employees Union, in an
 amount equal to the regular and periodic dues it would have received
 from the pay of Darlene T. Butler and Charles Yim, since February 22,
 1981, but did not receive as a result of the unlawful refusal to honor
 their valid written allotments for such purpose.  WE WILL, commencing
 with the first pay period after the date of this Order, deduct regular
 and periodic dues from the pay of Darlene T. Butler and Charles Yim and
 remit such dues to National Treasury Employees Union.
                                       (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 of
 the Federal Labor Relations Authority, Region 9, whose address is:  530
 Bush Street, Suite 542, San Francisco, California 94108 and whose
 telephone number is:  (415) 556-8105.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1A/ The allegations in the complaint involving this Respondent were
 withdrawn at the hearing by the General Counsel.
 
 
    /1/ At the hearing General Counsel withdrew paragraphs 7, 10, and 13
 of the Complaint.  The allegations so withdrawn pertain to actions taken
 by the Respondent IRS Los Angeles District against Paul Johnson.
 Accordingly, the remaining allegations at issue concern actions taken by
 Respondent IRS and Respondent IRS Seattle District against Darlene
 Butler, as well as those taken by Respondent IRS and Respondent IRS San
 Francisco District against Charles Yim.
 
 
    /2/ In their post-hearing briefs both General Counsel and Respondents
 moved to correct the transcript in respect to certain specified errors.
 No objection having been interposed as to either motion, and it
 appearing that the corrections are proper, both motions are granted.
 The transcript is hereby corrected as reflected in Appendix B which is
 annexed to this decision.
 
    General Counsel, in its post-hearing brief, also requests the
 transcript be corrected to reflect an exchange, apparently off the
 record, between the undersigned and Respondents' counsel.  This exchange
 of words related to the limited purpose for which Respondents' Exhibit
 No. 7 was offered and received in evidence.  I am satisfied, based on
 the transcript, that the record reflects the said exhibit was received
 for the limited purpose of showing it was Respondents' position that the
 disputed classification herein was excluded from the unit.  Accordingly,
 that motion to correct the transcript by including off the record
 remarks is denied.
 
 
    /3/ The record reflects that the bargaining unit list prepared in
 1977 denoted that Management Analysts (Space Planners) were
 non-bargaining unit positions;  that until the present controversy
 management was never advised that the Union deemed this classification
 to be within the bargaining unit.  Moreover, prior to this proceeding,
 the Union never raised any question re the unit placement of the
 Management Analysts (Space Planners).
 
 
    /4/ At the time she first held this position Butler was a trainee at
 a GS 5 level.  The Position Description is graded at GS 11 for the full
 working level.
 
 
    /5/ G.C. Exhibit No. 2 contains all the duties listed on the Position
 Description.  The more significant duties are summarized and set forth
 herein by the undersigned.
 
 
    /6/ This employee is concededly within the bargaining unit.
 
 
    /7/ At the time he was removed from dues withholding Yim held this
 position as a GS 9.  The Position Description, including the duties
 thereof, for the incumbent at that grade level are contained in G.C.
 Exhibit No. 3.  These duties overlap those hereinabove set forth as to
 the Management Analyst (Space Analyst) in the Seattle District, but are
 summarized herein.  Respondents' Exhibit No. 12 is the Position
 Description for Management Analyst (Space Planner) at San Francisco
 District for GS 11 level, which Yim occupied subsequent to his removal
 from dues withholding.
 
 
    /8/ Under this Position Description the incumbent must have the
 ability to develop floor plans and layouts, analyze office procedures
 and workflow, and prepare written recommendations.  He must have
 knowledge of interior design and office equipment, as well as open
 office landscaping.
 
 
    /9/ For simplification the Position Management Analyst (Space Analyst
 or Space Planners) hereinafter will be designated as M/A.
 
 
    /10/ In 1981 Butler's supervisor was chief of the Facilities Branch;
 Yim's is supervised by Chief of the Space Information Systems.  Neither
 Butler nor Yim supervises other employees.
 
 
    /11/ As to the sole employee found by the Authority not to be a
 supervisor, a violation was found to have occurred and a remedial order
 was issued.
 
 
    /12/ Under this Section an agency is requested to honor a written
 assignment from an employee, in an appropriate unit, which authorizes
 the agency to deduct dues from the pay of the employee and make an
 allotment thereof.
 
 
    /13/ The case of General Services Administration, National Archives
 a