12:0372(80)CA - Treasury, IRS, Atlanta District Office, Atlanta, GA and NTEU -- 1983 FLRAdec CA



[ v12 p372 ]
12:0372(80)CA
The decision of the Authority follows:


 12 FLRA No. 80
 
 DEPARTMENT OF TREASURY
 INTERNAL REVENUE SERVICE
 ATLANTA DISTRICT OFFICE
 ATLANTA, GEORGIA
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case Nos. 4-CA-1155 
                                                      4-CA-1233
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in the
 unfair labor practices alleged in the consolidated complaint and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  Exceptions to the Judge's Decision were
 filed by the Respondent, and both 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, the Authority hereby adopts the
 Judge's findings, /1/ conclusions /2/ and recommendations.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the Department of Treasury, Internal Revenue Service, Atlanta
 District Office, Atlanta, Georgia, shall:
 
    1.  Cease and desist from:
 
    (a) Failing to afford the National Treasury Employees Union
 appropriate notification of, and an opportunity to be represented at, a
 formal discussion between one or more representatives of the agency and
 one or more employees in the unit concerning personnel policies and
 practices or other general conditions of employment.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their 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 Federal Service Labor-Management Relations
 Statute.
 
    (a) Provide the National Treasury Employees Union with appropriate
 prior notification of, and an opportunity to be represented at, any
 formal discussion between one or more representatives of the agency and
 one or more employees in the unit concerning personnel policies and
 practices or other general conditions of employment.
 
    (b) Post at all offices within the jurisdiction of the Atlanta
 District Office copies of the attached Notice on forms to be furnished
 by the Authority.  Upon receipt of such forms, they shall be signed by
 the Director of the Atlanta District, 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.  The Director shall take reasonable
 steps 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 IV, 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., July 29, 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 afford the National Treasury Employees Union
 appropriate notification of, and an opportunity to be represented, at a
 formal discussion between one or more representatives of the agency and
 one or more employees in the unit concerning personnel policies and
 practices or other general conditions of employment.  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 Federal Service
 Labor-Management Relations Statute.  WE WILL provide the National
 Treasury Employees Union with appropriate prior notification of, and an
 opportunity to be represented at, any formal discussion between one or
 more representatives of the agency and one or more employees in the unit
 concerning personnel policies and practices or other general conditions
 of employment.
                                       (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 IV,
 Federal Labor Relations Authority, whose address is:  1776 Peachtree
 Street, N.W., Suite 501, North Wing, Atlanta, GA.  30309 and whose
 telephone number is:  (404) 881-2324.
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 4-CA-1155
                                       Case No.: 4-CA-1233
 
    Harry Mason, Esquire
       For the Respondent
 
    Barbara S. Liggett, Esquire
       For the General Counsel
 
    Timothy Welsh, Esquire
       For the Charging Party
 
    Before:  BURTON S. STEINBURG
       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.Section 7101, et seq., and the Rules and Regulations issued
 thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980, and Vol. 46,
 No. 154, August 11, 1981, 5 C.F.R.Chapter XIV, Part 2411, et seq.
 
    Pursuant to charges filed on August 18, and September 15, 1981, in
 case numbers 4-CA-1155 and 4-CA-1233, respectively, by the National
 Treasury Employees Union (hereinafter called the Union or NTEU), a
 Consolidated Complaint and Notice of Hearing was issued on July 15,
 1982, by the Regional Director for Region IV, Federal Labor Relations
 Authority, Atlanta, Georgia.  The Complaint alleges, in substance, that
 the Department of the Treasury, Internal Revenue Service, Atlanta
 District office, Atlanta, Georgia, (hereinafter called the Respondent or
 IRS), violated Sections 7116(a)(1), (5) and (8) of the Federal Service
 Labor-Management Relations Statute, (hereinafter called the Statute or
 Act), by virtue of its actions in conducting two meetings with its
 employees wherein, "personnel policies, practices and procedures and
 other general conditions of employment of employees were discussed"
 without giving the Union prior notice of such meetings and an
 opportunity to attend.
 
    A hearing was held in the captioned matter on August 17, 1982, in
 Atlanta, Georgia.  All parties were afforded full opportunity to be
 heard, to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues involved herein.  The Respondent, the General
 Counsel and the Charging Party submitted post hearing briefs which have
 been duly considered.  /3/
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions and recommendations.
 
                             Findings of Fact
 
    The Union, the charging party herein, is the exclusive bargaining
 representative of Respondents professional and non-professional
 employees working in the Atlanta, Georgia District Office, which
 includes, among other areas, the Birmingham, Alabama office of
 Respondent.
 
    The Complaint alleges, and Respondent admits, that on or about July
 22, 1981, Respondent's representatives, namely, Mr. Eugene Cassidy,
 Division Chief, Exempt Plans/Employer Organizations Divisions, Atlanta,
 Georgia, Mr. Charles Baumann, Group Manager, Birmingham, Alabama, and
 Mr. Michael Patton, Chief Counsel's Office, Washington, D.C. conducted a
 meeting at Birmingham, Alabama, which was attended by a number of unit
 employees.  During the course of the meeting a discussion was had with
 the unit employees concerning "personnel policies, practices and
 procedures, and other general conditions of employment of "the unit
 employees working in Birmingham, Alabama.
 
    The Complaint alleges, and Respondent admits, that on or about August
 4, 1981, Mr. Charles Baumann and Ms. Katherine San Embterio, Group
 Manager, Atlanta, Georgia, conducted a meeting at Birmingham, Alabama,
 which was attended by a number of unit employees.  Respondent further
 admits that during the meeting there was a discussion of "personnel
 policies, practices and procedures and other general conditions of
 employment of employees in the unit".  /4/
 
    Mr. Hal Dubin, who, at the time of the events underlying the instant
 complaint, was NTEU, "Chapter President, Atlanta District, Chapter 26",
 testified that he had never been given notice of the two Birmingham,
 Alabama meetings.  Mr. Dubin further testified that according to the
 collective bargaining agreement /5/ he was the Union representative
 authorized to receive notice on behalf of the Union of any meetings.
 Mr. Dubin acknowledged, however, that on July 22, 1981, he had been
 informed during a meeting in Atlanta, Georgia, with Mr. Bullard,
 Assistant Chief, EP/EO Division, Atlanta District, that the Group
 Manager in Birmingham had resigned and that it would be necessary to
 either "replace him with another group manager on-site in Birmingham or
 to make some other re-alignment."
 
    Mr. Bullard testified that about 1 p.m. on July 22, 1981, he advised
 Mr. Dubin that Mr. Cassidy was in Birmingham, Alabama, and that Mr.
 Cassidy intended to hold a meeting in Birmingham about one hour later
 for purposes of announcing that Ms. San Embterio was going to be the new
 group manager at Birmingham.  According to Mr. Bullard, he had been
 instructed by Mr. Cassidy to inform Mr. Dubin of the change in
 Birmingham in order to allow him, Mr. Dubin, if he so desired, to
 contact the Birmingham office and designate a unit employee in
 Birmingham as his representative at the meeting.  Mr. Bullard further
 testified that although he had never given this type of notice to Mr.
 Dubin in the past, it was his understanding that it had been Mr. Dubin's
 past practice with respect to meetings held in Respondent's outlying
 offices to designate a representative rather than attend such meetings
 himself.  /6/
 
    With respect to the August 4, 1981, meeting, Respondent offered no
 evidence to contradict Mr. Dubin's testimony that he, Mr. Dubin, had no
 advance notice of the meeting.
 
                          Discussion and Analysis
 
    The Complaint alleges that Respondent violated Sections 7116(a)(1),
 (5) and (8) of the Statute by virtue of its actions in holding formal
 discussions within the meaning of Section 7114(a)(2)(A) /7/ without
 providing the Union with notice and an opportunity to be present.
 
    According to both a literal reading of Section 7114(a)(2)(A) and
 applicable case precedent, the Union is only entitled to have notice and
 an opportunity to attend discussions which are formal in nature.  In the
 absence of a showing that the discussions were indeed formal, a failure
 to give the Union notice and an opportunity to attend is not violative
 of Sections 7116(a)(1), (5) and (8) of the Statute.
 
    While the formality of the two meetings in question was not
 specifically litigated at the hearing, it is obvious that all parties to
 the proceeding were in agreement that the meetings were indeed formal.
 Thus, it is noted that Respondent's Counsel in his post hearing brief
 acknowledges that Respondent's answer to the consolidated complaint
 "admitted the meetings were held;  admitted the meetings were formal
 discussions involving personnel policies, etc.".
 
    Accordingly, in view of the foregoing acknowledgement from
 Respondent's Counsel, it is obvious that the only issues for resolution
 are whether or not notice of the meetings were given, and if so, the
 adequacy of such notice.
 
    As noted in the factual portion of this decision, Mr. Dubin, NTEU
 Chapter President, denied receiving any prior notice of the July 22 or
 August 4, 1981 meetings.  His testimony with regard to not receiving any
 notice of the August 4, 1981, meeting stands unrebutted.
 
    With respect to the July 22, 1981, meeting, Mr. Bullard testified
 that he had given Mr. Dubin notice of this meeting at approximately 1
 p.m. that day.  Due to the time change in Birmingham, Alabama, the
 alleged notice would have occurred one hour prior to the meeting.
 
    In view of the foregoing, it is obvious that a credibility
 determination is in order.  Accordingly, having observed both witnesses,
 I credit Mr. Dubin's testimony that he had not received any advanced
 notice of the July 22, 1981 meeting.
 
    Having credited Mr. Dubin with respect to the conflict in testimony
 concerning whether or not he had received prior notice of the July 22
 meeting, and in the absence of any contradiction of Mr. Dubin's
 testimony with respect to the absence of notice of the August 4, 1981,
 meeting, I find that Respondent violated Sections 7116(a)(1), (5) and
 (8) of the Statute by virtue of its actions in holding two formal
 meetings with employees, wherein terms and conditions of employment were
 discussed, without first giving the Union notice of such meetings and an
 opportunity to attend.  Internal Revenue Service, Fresno Service Center,
 Fresno, California, 7 FLRA No. 54.
 
    Having found that Respondent violated Sections 7116(a)(1), (5) and
 (8) of the Statute by virtue of its actions in holding formal
 discussions with unit employees concerning terms and conditions of
 employment without giving the Union prior notice of such meetings and an
 opportunity to attend, I recommend that the Authority issue the
 following order designed to effectuate the purposes and policies of the
 Statute.
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and Section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the Respondent, Department of Treasury, Internal Revenue Service,
 Atlanta District Office, Atlanta, Georgia, shall:
 
    1.  Cease and desist from:
 
          (a) Failing to afford the National Treasury Employees Union
       appropriate notification of, and an opportunity to be represented
       at, a formal discussion between one or more representatives of the
       agency and one or more employees in the unit concerning personnel
       policies and practices or other general conditions of employment.
 
          (b) In any like or related manner failing or refusing to comply
       with any provision of the Federal Service Labor-Management
       Re7ations Statute.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of rights
       assured by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative actions in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute.
 
          (a) Provide the National Treasury Employees Union with
       appropriate prior notification of, and an opportunity to be
       represented at, any formal discussion between one or more
       representatives of the agency and one or more employees in the
       unit concerning personnel policies and practices or other general
       conditions of employment.
 
          (b) Post at all offices within the jurisdiction of the Atlanta
       District Office copies of the attached Notice marked "Appendix" on
       forms to be furnished by the Authority.  Upon receipt of such
       forms, they shall be signed by the Director of the Atlanta
       District and shall be posted and maintained by him for 60
       consecutive days thereafter, in conspicuous places, including all
       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) Pursuant to 5 C.F.R., Section 2423.30, notify the Regional
       Director, Federal Labor Relations Authority, Region 4, in writing,
       within 30 days from the date of this order, as to what steps have
       been taken to comply herewith.
 
                                       BURTON S. STERNBURG
                                       Administrative Law Judge
 
 Date:  October 26, 1982
       Washington, D.C.
 
 
 
                                 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
 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT fail to afford the National Treasury Employees Union
 appropriate notification of, and an opportunity to be represented at, a
 formal discussion between one or more representatives of the agency and
 one or more employees in the unit concerning personnel policies and
 practices or other general conditions of employment.  WE WILL NOT in any
 like or related manner, fail or refuse to comply with any provision of
 the Federal Service Labor-Management Relations Statute.  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 provide the National
 Treasury Employees Union with appropriate prior notification of, and an
 opportunity to be represented at, any formal discussion between one or
 more representatives of the agency and one or more employees in the unit
 concerning personnel policies and practices or other general conditions
 of employment.
                                       (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 its provisions, they
 may communicate directly with the Regional Director for the Federal
 Labor Relations Authority, Region 4, whose address is:  1776 Peachtree
 Street, N.W., Suite 501, North Wing, Atlanta, Georgia, 30309, and whose
 telephone number is:  (404) 881-2324.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Respondent excepted to certain credibility findings made by
 the Judge.  The demeanor of witnesses is a factor of consequence in
 resolving issues of credibility, and the Judge has had the advantage of
 observing the witnesses while they testified.  The Authority will not
 overrule a Judge's resolution with respect to credibility unless a clear
 preponderance of all the relevant evidence demonstrates that such
 resolution was incorrect.  The Authority has examined the record
 carefully, and finds no basis for reversing the Judge's credibility
 findings.
 
 
    /2/ However, the Authority finds it unnecessary to decide whether the
 Respondent, in addition to having violated section 7116(a)(1) and (8) of
 the Statute, also violated section 7116(a)(5).
 
 
    /3/ General Counsel's motion to correct the transcript with respect
 to the proper spelling of the name "San Embterio" is hereby granted.
 
 
    /4/ Other than indicating that the July 22, 1981, meeting was called
 for the purpose of announcing that Ms. San Embterio was going to be the
 new group manager in Birmingham, and that the August 4, 1981, meeting
 was called for the purpose of introducing Ms. Embterio to the employees
 in Birmingham, Alabama, the record is barren of any evidence concerning
 the format, prior arrangements for the two meetings or how the
 discussions arose and were conducted at the meetings.  In view of
 Respondent's admissions set forth above, the General Counsel made it
 clear at the opening of the hearing that the "only issue in these cases
 then is whether the NTEU was given notice of these meetings and an
 opportunity to attend." To this end, the General Counsel's record
 presentation was limited solely to evidence bearing on whether
 Respondent had given notice to the Union of the meetings and an
 opportunity to attend same.
 
 
    /5/ The collective bargaining contract provides that notice of formal
 discussions will be given to the Chief Steward or Chapter President.
 
 
    /6/ Mr. Cassidy testified that prior to leaving for Birmingham, he
 had instructed Mr. Bullard to inform