14:0698(92)CA - IRS (District, Region, National Office Unit) and NTEU -- 1984 FLRAdec CA
[ v14 p698 ]
The decision of the Authority follows:
14 FLRA No. 92 INTERNAL REVENUE SERVICE (DISTRICT, REGION, NATIONAL OFFICE UNIT) Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 3-CA-1964 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. Upon consideration of the entire record in this case, including the stipulation of facts, accompanying exhibits, and the parties' contentions, the Authority finds: The complaint herein alleges that the Respondent, Internal Revenue Service (District, Region, National Office Unit), violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) /1/ by refusing to negotiate with the National Treasury Employees Union (NTEU) over the impact and implementation of its validation study of the Employee Plans Case Assignment Guide (the Guide) /2/ and by bypassing NTEU when the Respondent conducted interviews with unit employees concerning the Guide as a part of the study. The stipulated record shows that the Respondent notified NTEU by letter dated October 7, 1980, that a validation study of the Guide would be conducted, and that as a part of the study, unit employees would be interviewed to gather information on the accuracy of the Guide. The letter listed a number of locations where the interviews would be held beginning October 27, 1980, and continuing into December of that year. By letter dated October 27, 1980, NTEU requested bargaining over the Guide and expressed its opposition to any attempt by the respondent to select the employees to be interviewed or to hold the interviews without inviting NTEU's representatives to attend. On November 14, 1980, NTEU notified the Activity that it was still waiting for an answer to its request to negotiate. On November 18, 1980, the Respondent informed NTEU that its position with respect to the employee interviews was the same as that contained in a June 1980 letter to NTEU concerning a prior incident involving such employee interviews. In that letter, the Respondent expressed the view that the interviews with unit employees were not formal discussions within the meaning of section 7114(a)(2)(A) of the Statute /3/ at which NTEU was entitled to be represented. The General Counsel here argues that while the Guide itself, and the decision to validate it, are not negotiable, the impact and implementation of the decision to validate the Guide are negotiable. Thus, the General Counsel argues that the procedures for implementing the survey and, specifically, the method of conducting employee interviews should have been the subject of negotiations, and that the Respondent's failure to bargain constitutes a violation of section 7116(a)(1) and (5) of the Statute. The General Counsel further argues that the Respondent bypassed NTEU in violation of section 7116(a)(1) and (5) of the Statute by conducting interviews with unit employees without having provided NTEU an opportunity to be present at such interviews. The Respondent contends that it had no obligation to bargain over the impact and implementation of the validation study, but that even assuming such a bargaining obligation existed, NTEU's request to negotiate was untimely as it was dated the day the study began and was received after the implementation date, although notice was given approximately three weeks earlier. As previously noted, the Respondent informed NTEU of the validation study by letter dated October 8. Also contained in that letter was notification that employees would be interviewed as a part of the study along with a list of the Respondent's locations to be visited and corresponding dates commencing on October 27, 1980. The record indicates that NTEU's request to bargain was dated October 27, the date the study was scheduled to begin. When a union has adequate notice of when a change is to be implemented, it must make a timely request for impact bargaining. See United States Department of Defense, Department of the Army, Headquarters, Fort Sam Houston, Texas, 8 FLRA 623 (1982). In the Authority's view, NTEU's bargaining request, which was made nearly three weeks after notification was given and which was made on the same date as the study was scheduled to begin, was not timely made. Under these circumstances, the Respondent had no obligation to bargain and its failure to do so cannot be found to have violated the Statute. /4/ With respect to the allegation that the Respondent bypassed NTEU by conducting interviews with unit employees in violation of section 7116(a)(1) and (5) of the Statute, the Authority previously has stated that not all direct communication between management and its employees is prohibited. See Kaiserslautern American High School, Department of Defense Dependents Schools, Germany North Region, 9 FLRA 184 (1982). In the instant case, the Respondent was merely attempting to gather factual information to determine whether its case assignment procedures were working as envisioned when the Guide was created, and involved no attempt to deal directly with unit members or to undermine the status of NTEU as the employees' exclusive representative. See Internal Revenue Service (District, Region, National Office Unit), 11 FLRA no. 23 (1983), aff'd sub nom. national treasury employees union v. Federal Labor Relations Authority, No. 83-1295 (D.C. Cir. Jan. 26, 1984); Division of Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA 307 (1982). Thus, the Authority concludes that this allegation of the complaint also must be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 3-CA-1964 be, and it hereby is, dismissed. Issued, Washington, D.C., May 24, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1) and (5) of the Statute provides: Sec. 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; . . . . (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.) /2/ The Employee Plans Case Assignment Guide is used to rate cases for assignment to appropriate grade level employees. /3/ Section 7114(a)(2)(A) provides: Sec. 7114. Representation rights and duties (a)(1) A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit. An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership. (2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at-- (A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment(.) /4/ In view of this disposition, it is unnecessary to pass upon the Respondent's arguments with respect to the scope of the bargaining obligation over the validation study.