13:0459(82)CA - Treasury, IRS, Dallas District and NTEU and NTEU Chapter 46 -- 1983 FLRAdec CA



[ v13 p459 ]
13:0459(82)CA
The decision of the Authority follows:


 13 FLRA No. 82
 
 UNITED STATES DEPARTMENT OF THE
 TREASURY, INTERNAL REVENUE SERVICE,
 DALLAS DISTRICT
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 46
 Charging Party
 
                                            Case No. 6-CA-419
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain unfair labor practices alleged in the 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 all parties.  Additionally, the Charging Party filed a response
 to the Respondent's exceptions and the Respondent filed an opposition to
 the exceptions of the General Counsel and the Charging Party.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (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, conclusions /1/ and recommendations as modified herein.
 
    The Judge found that the Respondent unilaterally changed the
 scheduled tours of duty of approximately 50 WAE employees from eight to
 six hours per day for an indefinite period without first considering
 workload or seeking volunteers for furlough, a deviation from
 established past practice, and without giving the Charging Party, the
 employees' exclusive representative, prior notice and a reasonable
 opportunity to bargain concerning the impact and implementation of the
 decision.  While the Respondent was not under an obligation to bargain
 with respect to the decision herein to effect changes in its employees'
 daily tours of duty, it was under an obligation to give advance notice
 to the Charging Party and afford it an opportunity to bargain with
 respect to the impact and implementation of such decision.  See U.S.
 Customs Service, Region V, New Orleans, Louisiana, 9 FLRA No. 15 (1982).
  See also Headquarters, 77th U.S. Army Command, Fort Totten, New York, 9
 FLRA No. 95 (1982);  Department of the Treasury, United States Customs
 Service, Region VIII, San Francisco, California, 9 FLRA No. 68 (1982).
 Accordingly, the Authority agrees with the Judge's conclusion that the
 Respondent's unilateral change in the affected employees' scheduled
 tours of duty without affording the Charging Party an opportunity to
 bargain with respect to the impact and implementation of the decision
 constitutes a violation of section 7116(a)(1) and (5) of the Statute.
 
    The Authority cannot adopt, however, the Judge's general conclusion
 that a status quo ante remedy would not be warranted in cases where, as
 here, there was a failure to negotiate concerning the impact and
 implementation of such decision.  In a decision issued after the Judge's
 decision herein, Federal Correctional Institution, 8 FLRA No. 111
 (1982), the Authority stated:
 
          (S)tatus quo ante remedies may be issued in certain refusal to
       bargain cases even where the agency's decision itself was not
       negotiable.  Where, as here, management has exercised its reserved
       rights under section 7106 of the Statute without fulfilling its
       duty to bargain with the exclusive representative concerning the
       procedures it will observe in the exercise thereof and regarding
       appropriate arrangements for bargaining unit employees adversely
       affected thereby, pursuant to sections 7106(b)(2) and 7106(b)(3)
       of the Statute, respectively, the Authority on occasion has issued
       orders requiring a return to the status quo ante.  However, the
       appropriateness of a status quo ante remedy must be determined on
       a case-by-case basis, carefully balancing the nature and
       circumstances of the particular violation against the degree of
       disruption in government operations that would be caused by such a
       remedy.  Accordingly, in determining whether a status quo ante
       remedy would be appropriate in any specific case involving a
       violation of the duty to bargain over impact and implementation,
       the Authority considers, among other things, (1) whether, and
       when, notice was given to the union by the agency concerning the
       action or change decided upon;  (2) whether, and when, the union
       requested bargaining on the procedures to be observed by the
       agency in implementing such action or change and/or concerning
       appropriate arrangements for employees adversely affected by such
       action or change;  (3) the willfulness of the agency's conduct in
       failing to discharge its bargaining obligations under the Statute;
        (4) the nature and extent of the impact experienced by adversely
       affected employees;  and (5) whether, and to what degree, a status
       quo ante remedy would disrupt or impair the efficiency and
       effectiveness of the agency's operations. (FOOTNOTES OMITTED).
 
    In the instant case, in agreement with the General Counsel and
 Charging Party, the Authority finds that a status quo ante remedy is
 warranted.  Thus, balancing the nature and circumstances of the
 violation against the degree of disruption in government operations that
 would be caused by such a remedy, and taking into consideration the
 various factors set forth in Federal Correctional Institution, the
 Authority concludes that it will best effectuate the purposes and
 policies of the Statute to require the Respondent to (1) return to the
 preexisting practice concerning changes in the daily tours of duty of
 its WAE employees, and (2) make whole any adversely affected WAE
 employees for any loss of pay and/or benefits occasioned by the
 Respondent's unilateral change in their tours of duty without following
 its established practice of considering workload and seeking volunteers
 for furlough and without affording the employees' exclusive
 representative prior notice of the decision to make the change and an
 opportunity to bargain concerning the impact and implementation thereof.
  In this regard, the Authority notes that the Respondent not only failed
 to notify the Union of the intended change but also rejected the Union's
 request to negotiate when the latter subsequently learned of the change.
  The Authority also concludes that the Respondent's operations would not
 be unduly disrupted or impaired by the status quo ante remedy ordered
 herein.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the U.S. Department of the Treasury, Internal
 Revenue Service, Dallas District shall:
 
    1.  Cease and desist from:
 
    (a) Instituting changes in the daily tours of duty of its WAE
 employees without giving advance notice to the National Treasury
 Employees Union, the exclusive representative of its employees, and
 affording it the opportunity to bargain concerning the procedures for
 implementing such changes and concerning appropriate arrangements for
 employees adversely affected by such changes.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action:
 
    (a) Return to the practice which existed prior to January 7, 1980,
 concerning changes in the daily tours of duty of its WAE employees.
 
    (b) Notify the National Treasury Employees Union of any intended
 changes in the established practice concerning methods of changing the
 daily tours of duty of WAE employees and, upon request, negotiate
 concerning the procedures to be observed in implementing any change and
 concerning appropriate arrangements for employees adversely affected by
 such change.
 
    (c) Make whole any adversely affected WAE employees for any loss of
 pay and/or benefits they may have suffered as a result of the
 Respondent's unilateral change in established practice concerning the
 daily tours of duty of WAE employees by not first considering workload
 and seeking volunteers for furlough, and without giving advance notice
 to the National Treasury Employees Union and affording it the
 opportunity to bargain concerning the impact and implementation thereof.
 
    (d) Post at its Dallas, Texas facility, 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 District Director for
 the Dallas, Texas District, or his designee, and shall be posted and
 maintained for 60 consecutive days thereafter, in conspicuous places,
 including 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.
 
    (e) Notify the Regional Director for Region VI, 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., December 9, 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 institute changes in the daily tours of duty of our WAE
 employees without giving advance notice to the National Treasury
 Employees Union, the exclusive bargaining representative of our
 employees, and affording it the opportunity to bargain concerning the
 procedures for implementing such changes and concerning appropriate
 arrangements for employees adversely affected by such changes.
 
    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 return to the practice which existed prior to January 7,
 1980, concerning changes in the daily tours of duty of our WAE
 employees.
 
    WE WILL notify the National Treasury Employees Union of any intended
 changes in the established practice concerning methods of changing the
 daily tours of duty of WAE employees and, upon request, negotiate
 concerning the procedures to be observed in implementing any change and
 concerning appropriate arrangements for employees adversely affected by
 such change.
 
    WE WILL make whole any adversely affected WAE employees for any loss
 of pay and/or benefits they may have suffered as a result of the
 Respondent's unilateral change in established practice concerning the
 daily tours of duty of WAE employees by not first considering workload
 and seeking volunteers for furlough, and without giving advance notice
 to the National Treasury Employees Union and affording it the
 opportunity to bargain concerning the impact and implementation thereof.
                                       . . . (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 the Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director, Region VI, Federal Labor Relations Authority, Bryan
 and Ervay Streets, Room 450, P.O. Box 2640, Dallas, Texas 75221, and
 whose telephone number is (214) 767-4996.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    UNITED STATES DEPARTMENT OF THE
    TREASURY, INTERNAL REVENUE SERVICE,
    DALLAS DISTRICT
 
                                Respondent
 
    and
 
    NATIONAL TREASURY EMPLOYEE'S UNION
    AND NATIONAL TREASURY EMPLOYEE'S
    UNION, CHAPTER 46
 
                              Charging Party
 
                                       Case No.: 6-CA-419
 
    Steven R. Wolfson, Esquire
    Gary A. Anderson, Esquire
    For the Respondent
 
    James W. DeMik, Esquire
    For the General Counsel
 
    Sara M. Simpson, Esquire
    For the Charging Party
 
    Before:  BURTON S. STERNBURG
    Administrative Law Judge
 
                                 DECISION
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code Section 7101,
 et seq. and the Rules and Regulations issued thereunder, Fed. Reg., Vol.
 45, No. 12, January 17, 1980, 5 C.F.R. Chapter XIV, Part 2411, et seq.
 
    Pursuant to a charge filed on February 8, 1980, by the National
 Treasury Employee's Union and National Treasury Employee's Union Chapter
 46, (hereinafter called the NTEU or Union), a Consolidated Complaint and
 Notice of Hearing was issued on June 11, 1980, by the Regional Director
 for Region VI, Federal Labor Relations Authority, Dallas, Texas.  The
 Consolidated Complaint /1A/ alleges that the United States Department of
 the Treasury, Internal Revenue Service, Dallas District, (hereinafter
 called the Respondent or IRS), violated Sections 7116(a)(1) and (5) of
 the Federal Service Labor-Management Relations Statute, (hereinafter
 called the Statute) by virtue of its actions in unilaterally reducing
 the daily hours of work of a number of unit employees without giving the
 Union prior notice of such action and an opportunity to bargain with
 respect to the impact of the action on adversely affected employees and
 the manner of implementation.
 
    A hearing was held in the captioned matter on August 6, 1980, in
 Dallas, Texas.  All parties were afforded full opportunity to be heard,
 to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues herein.  All parties submitted briefs by October
 6, 1980, which have been duly considered.
 
    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 is the exclusive representative of a number of Respondent's
 employees working in the Respondent's Dallas, Texas District Office
 which includes outlying posts of duty in Lufkin, Tyler, Wichita Falls
 and Texarkana, Texas.  Among the employees represented by the Union are
 the Taxpayer Service Representatives (TSRs).  The TSRs are classified as
 permanent or seasonal employees.  The seasonal employees, who are the
 unit employees involved herein, are called WAE's (when actually
 employed).  These WAE employees are generally employed during the height
 of the income tax season, January 1 through April 15th each year, to
 help with the increased workload.  They are usually hired in the summer
 and put through a training program which lasts until the end of
 December.  Thereafter, depending on such considerations as past
 experience test scores, etc., they are put to work in January on
 pre-scheduled tours of duty.  The WAEs assigned tours of duty of less
 than eight hours per day and less than forty hours per week are
 considered part-time employees.  Although not clear from the record, it
 appears that those employees assigned less than eight hours per day and
 forty hours per week, are given such assignments because of their own
 particular preference.
 
    The Respondent's Manual provides that a WAE's tour of duty be
 reflected on a Standard Form 50 and that any subsequent changes of the
 tour of duty be recorded on a Standard Form 52.  Although Respondent did
 cut a Standard Form 52 when it changed a WAE's tour of duty, it did not
 record the reason for the change, i.e. voluntary or mandatory.
 
    During their training period the WAEs were given an orientation
 package which reads in pertinent part as follows:
 
    Leave
 
          C. . . . However, at times, Taxpayer Service Division's
       workload may fail to materialize due to weather conditions, or
       other unpredictable circumstances, If we expect this workload to
       resume the next day, and the managers will ask for volunteers from
       out WAE's to leave early.  The WAE's may take annual leave or
       LWOP.
 
          D.  Non-Work Status
 
          When management determines that workload has declined to the
       extent that it cannot, in the foreseeable future support those
       presently on duty, WAE's will be placed on non-work status via the
       furlough/recall roster (explained later).  WAE's do not earn leave
       or pay while they are in non-work status.
 
          When workload requires that WAE's be called back to duty, the
       managers, again using the furlough/recall roster, will contact the
       WAE's and tell them when to report.  It is not necessary for WAE's
       to go through the processing procedure again.
 
    With regard to reducing a WAE's scheduled day of duty, a memorandum
 dated November 19, 1976, from the Assistant Regional Commissioner to all
 District Directors in Respondent's Southwest Region, reads in pertinent
 part as follows:
 
          UNPREDICTABLE MIDDAY DECREASES IN SEASONAL WAE WORKLOAD
 
          There has been some misunderstanding about management's
       flexibility concerning the work tours of Seasonal WAE employees,
       particularly with regard to dismissing them at midday before the
       close of their tours of duty.
 
          Seasonal WAE employees must have a prescheduled tour of duty,
       either full-time or part-time.  If the tour of duty is part-time,
       the specific hours of the day and days of the week are noted in
       the "Remarks" section of the SF-50.  The tour of duty may be
       changed by an SF-50, provided that the Personnel Office is given
       at least five days notice in advance of the tour of duty change.
 
          On occasion, because of weather or other unpredictable
       circumstances, the workload of Seasonal WAE TSR's may drop off
       suddenly at midday.  In these situations, when management judges
       that placement into nonwork status or a tour of duty change is not
       warranted because it is expected that the workload will resume the
       next day, it is recommended that an attempt be made to find other
       work for the employee to perform.  If no other work in available,
       it is recommended that the employee be placed on mutually agreed
       upon leave without pay (LWOP) or annual leave.  Please note the
       LWOP or annual leave must be agreed to by the employee.
 
          Contrary to what you managers may have heard, there is no
       provision for dismissing a Seasonal WAE employee before the end of
       his/her prescheduled tour of duty without accounting for those
       remaining hours of the day in the manner described above.  Should
       the situation occur whereby the employee does not voluntarily
       request either annual leave or LWOP, and he/she cannot be assigned
       to other duties, the employee must be allowed to remain at his/her
       duty station for the scheduled hours of duty.  This is in contrast
       to an employee serving on an intermittent (i.e., nonprescheduled)
       tour of duty;  an intermittent employee may be dismissed when the
       workload demands, regardless of the time of day.
 
    With respect to furloughing WAE's for one day or longer, Article 25
 of the collective bargaining agreement in effect between the Union and
 Respondent provides as follows:
 
                                Article 25
 
          Section 1.  Furlough of WAE TSR's in Taxpayer Service
 
          A. When it become necessary to place any or all of the WAE
       employees in posts of duty in a non-work status, the following
       steps will first be taken in effecting the furlough:
 
          1.  Canvass employees in the post of duty to determine if a
       sufficient number of employees wish to accept a voluntary
       furlough.
 
          2.  If as a result of the canvass more employees wish to be
       furloughed than is necessary, the employees with the earliest
       Service computation dates will be placed in a non-work status.
 
          B.1.  If the canvass does not result in a sufficient number of
       volunteers for furlough, termination of employees work status will
       be based on merit evaluation of employees on one or two skills
       area rosters which shall be structured as follows:
 
    On or about January 7, 1980, Respondent announced that all WAE's in
 Dallas would be placed on six-hour shifts, five days a week for an
 indefinite period.  Thereafter, many of the newly hired WAE's were put
 on 6 hour days despite their objections.  Some of the WAEs subsequently
 were returned to eight hour shifts and then later reduced to seven hour
 shifts.  The unilateral action of Respondent in reducing the shifts to
 six hours per day affected over fifty employees.  The two hours not
 worked each day began to be recorded as LWOP, which if accrued in large
 amounts caused a reduction in leave benefits.  The WAEs also lost one of
 their two scheduled break periods.  Additionally, a number of WAEs were
 forced to make other travel arrangements and incur additionally expenses
 if they opted not to wait for their previously arranged car pools with
 full time permanent employees.
 
    The Union was never given advance notice of the Respondent's
 intention to mandatorily reduce the scheduled daily work hours from 8 to
 6.  Upon learning of Respondent's action from the affected employees,
 the Union unsuccessfully demanded bargaining over the change.
 
    On January 18, 1980, the Union's Chief Steward filed a grievance on
 behalf of all the WAEs affected by the January 7, 1980, change in the
 daily hours of work.  The grievance relied on Article 25,
 Furlough/Recall of WAEs;  Article 31, Section 3 dealing with denial of
 benefits through administrative error;  and Article 3, Section 1A and B
 Employee's Rights.  With respect to the relief desired, the grievance
 requested that the employees be restored to their 8 hour per day status
 which had been promised during recruitment and orientation.  The
 grievance did not address the failure of Respondent to give notice to
 the Union of the change and opportunity to request bargaining thereon.
 The grievance was never resolved due to the fact that it was not
 processed in accordance with the time limits set forth in the collective
 bargaining agreement.
 
    With respect to the past practice, of unilaterally reducing the WAE's
 scheduled daily hours of work, Ms. Nancy Smith, a Taxpayer Contact
 Representative, and Mr. Joe Whitman, a Supply Technician in the Resource
 Department, both of whom had held WAE positions in the past, creditably
 testified that they had never had their daily hours of work mandatorily
 reduced and to their knowledge no other WAEs had been forced to take a
 reduction in their scheduled daily hours of work.  Ms. Smith further
 testified that she conducted a survey among the WAEs with respect to
 whether any of them had ever had their daily hours of work mandatorily
 reduced and received no affirmative answers.  Similar, if not identical
 testimony was adduced from Ms. Louise Van, a former employee of
 Respondent, and Ms. Julie Thompson, a taxpayer specialist and an on the
 job training instructor for the WAE employees.
 
    A number of newly hired WAEs testified that they were led to believe
 during orientation and training that they would be hired for eight hours
 per day, five days per week, with a 30 minute lunch break and two other
 15 minute breaks.
 
    The only probative evidence that was contrary to that appearing
 above, appeared in the testimony of a number of group managers and other
 management officials.  The group managers and management officials cited
 numerous instances over the past few years where employees had their
 scheduled tours of duty reduced.  With the exception of two minor
 instances occurring in outlying posts of duty employing only one WAE,
 all the witnesses acknowledged that they did not know whether the cited
 changes in tours of duty were voluntary or mandatory.  All that they
 know about the changes in tours of duty was that such changes had
 occurred and not the circumstances surrounding same.  /2/
 
                        Discussions and Conclusions
 
    Respondent urges dismissal of the instant complaint on the grounds
 that the changes in hours of duty were not contrary to past practice,
 and that, in any event, Section 5 U.S.C. 7116(d) precludes any further
 action since the issues underlying the complaint had been previously
 raised under the grievance procedure.  For reasons set forth infra, I
 find Respondent's defenses to be without merit.
 
    The testimony of the General Counsel's witnesses, as well as the
 Respondent's publications appearing in the record, establish that it was
 past practice to hire two types of WAE employees, i.e. full time and
 part time.  Both types of employees were assigned scheduled tours of
 duty, with the part-time WAEs working less that forty hours per week and
 eight hours per day.  The WAEs, as their title connotes, were subject to
 furlough based upon the work available during the tax season.  The means
 of furlough and/or their reduction in working hours was clearly set
 forth in both the collective bargaining agreement and the published
 manuals and bulletins of the Respondent.  To the extent that work
 diminished during the tax season, Respondent was obligated to call for
 volunteers before mandatorily reducing the WAEs hours of work.
 
    The record is barren of any probative evidence indicating that
 Respondent, as a general rule, had ever deviated from its established
 policies in effecting changes in a WAE's scheduled tour of duty, i.e.
 predicating reduction of hours on diminishing work and first utilizing
 volunteers.  According to the credited testimony of Ms. Nancy Smith and
 Mr. Joe Whitman, neither they nor their fellow WAEs had ever had their
 daily scheduled hours of work mandatorily reduced in a manner similar to
 that utilized by Respondent in January 1980.  Respondent's witnesses
 failed to supply any probative evidence to the contrary.  All that
 Respondent's witnesses established was that changes in tours of duty has
 been made in the past, a fact conceded by the General Counsel.
 Additionally, Respondent's witnesses did not in any way indicate the
 manner in which the changes were accomplished and/or that such past
 changes in tours of duty were effected in a manner similar to that
 utilized by Respondent in January 1980.
 
    It is the manner and type of changes which is the basis of the
 instant complaint.  In the past, it appears that changes in tours of
 duty etc., were effectuated on the basis of a diminishing work load and
 the use of volunteers.  The 1980 changes were effectuated on a different
 basis and in a different manner.  In fact, Respondent's action
 effectively eliminated the existing distinction between full time and
 part time WAEs and, among other things, altered the WAEs' leave
 benefits.
 
    Accordingly, on the basis of the foregoing consideration, I find that
 Respondent's action in unilaterally changing the scheduled daily tours
 of duty of its WAE employees without first considering its work load or
 calling for volunteers constituted a deviation from established past
 practice.  In such circumstances, Respondent was under an obligation to
 give prior notice of its decision to the Union, and, upon request,
 bargain with the Union concerning the impact of its decision on
 adversely affected employees and the manner of implementation.  Having
 failed to fulfill such obligation, I find that the Respondent violated
 Sections 7116(a)(1) and (5) of the Statute.  Internal Revenue Service,
 Austin Service Center, 2 FLRA No. 97.
 
    I further find that 5 USC 7116(d) is not a bar to the instant
 proceedings.  The grievance filed by the Union was on behalf of the WAE
 employees and sought to protect the employees rights under the
 collective bargaining contract.  /3/ It did not concern the issue
 involved in the instant proceeding, i.e. the bargaining rights accorded
 an exclusive representative under the Statute.  Accordingly, since the
 issues are completely different, albeit based on the same set of fact,
 further proceedings are not barred by Section 7116(d) of the Statute.
 Portsmouth Naval Shipyard, A/SLMR No. 508;  Department of the Treasury,
 Internal Revenue Service, Fresno Service Center, A/SLMR No. 983.
 
    Having found that the United States Department of the Treasury,
 Internal Revenue Service, Dallas District, violated Sections 7116(a)(1)
 and (5) of the Statute, I recommend that the Authority issue the
 following Order:
 
                                 ORDER /4/
 
    Pursuant to Section 7118(a)(7)(A) of the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. 7118(a)(7)(A), and Section
 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R. 2423.29(b)(1), the
 Authority hereby orders that the United States Department of the
 Treasury, Internal Revenue Service, Dallas District, shall:
 
    1.  Cease and desist from:
 
          (a) Instituting changes in the daily tours of duty of its WAE
       employees without notifying the National Treasury Employees Union,
       the exclusive representative of its employees, and affording it
       the opportunity to bargain concerning the implementation of such
       changes and their impact on adversely affected employees.
 
          (b) In any like or related manner, interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Federal Labor-Management Relations Statute.
 
    2.  Take the following affirmative action:
 
          (a) Upon request, meet and negotiate with the National Treasury
       Employees Union concerning the procedures to be utilized in
       implementing changes in the daily tours of duty of its WAE
       employees and their impact on adversely affected employees.
 
          (b) Post at its Dallas Texas facility, copies of the attached
       Notice marked "Appendix" on forms to be furnished by the Federal
       Labor Relations Authority.  Upon receipt of such forms they shall
       be signed by the District Director for the Dallas, Texas District,
       and shall be posted and maintained by him for 60 consecutive days
       thereafter, in conspicuous places, including bulletin boards and
       other places where Notices are customarily posted.  The District
       Director shall take reasonable steps to insure that such Notices
       are not altered, defaced or covered by any other material.
 
          (c) Notify the 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.
 
                                       BURTON S. STERNBURG
                                       Administrative Law Judge
 
    Dated:  January 22, 1981
    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 WE HEREBY NOTIFY OUR EMPLOYEES
 THAT:
 
    WE WILL NOT institute changes in the daily tours of duty of the WAE
 employees without first notifying the National Treasury Employees Union,
 the exclusive bargaining representative of our employees, and affording
 it the opportunity to bargain concerning the implementation of such
 changes and their impact on adversely affected employees.
 
    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 Labor-Management Relations Statute.
 
    WE WILL, upon request, meet and negotiate with the National Treasury
 Employees Union concerning the procedures to be utilized in implementing
 changes in the daily tours of duty of the WAE employees and their impact
 on adversely affected employees.
                                       . . . (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 question concerning this Notice, or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director, Federal Labor Relations Authority, Region 6, whose
 address is:  Room 450, Bryan and Ervay Streets, Downtown Post Office
 Station, Dallas, Texas 75221.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Authority adopts the Judge's conclusion that the instant
 complaint was not barred by section 7116(d) of the Statute, noting
 particularly the absence of exceptions thereto.
 
    /1A/ At the opening of the hearing, the General Counsel, on the basis
 of a prehearing settlement agreement, withdrew the allegations of the
 consolidated complaint which were predicated upon charges in Cases Nos.
 6-CA-396, 397 and 420, leaving only the allegation described infra.
 
 
    /2/ In this latter connection it should be noted that the General
 Counsel and the Charging Party both acknowledge that in the past there
 had been changes in the WAE hours of work and tour of duty.  However,
 they do contend that the 1980 changes were completely different, both in
 manner and substance, than those of past years.
 
 
    /3/ The grievance sought as a remedy the restitution of the WAEs'
 eight hour per day tour of duty.
 
 
    /4/ The General Counsel and the Charging Party seek a status quo and
 back-pay remedy with respect to Respondent's refusal to bargain
 regarding the impact and implementation of the changes instituted
 herein.  The Authority, however, has determined that such a remedial
 order is not appropriate where an employer is not obligated to bargain
 with respect to the substance of its decision.  The Adjutant General's
 Office, Puerto Rico Air National Guard, 3 FLRA No. 55.  Under Section
 7135 of the Act, all policies, regulations and procedures established
 under Executive Order 11491, as amended, continue in force and effect
 unless revoked by the President or superseded by the Authority.
 Accordingly, I am constrain