17:0107(22)CA - Treasury, IRS, Memphis Service Center and NTEU -- 1985 FLRAdec CA



[ v17 p107 ]
17:0107(22)CA
The decision of the Authority follows:


 17 FLRA No. 22
 
 DEPARTMENT OF TREASURY
 INTERNAL REVENUE SERVICE
 MEMPHIS SERVICE CENTER
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 4-CA-20050
 
                            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 complaint, and recommending that
 it be ordered to cease and desist therefrom and take certain affirmative
 action.  Thereafter, the General Counsel filed exceptions to the scope
 of the Judge's recommended Order.
 
    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 and conclusions, /1/ and the recommended Order as
 modified herein.  /2/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the Department of Treasury, Internal Revenue Service, Memphis
 Service Center, shall:
 
    1.  Cease and desist from:
 
    (a) Attempting to resolve a unit employee's grievance filed pursuant
 to the grievance procedure set forth in its negotiated agreement with
 the National Treasury Employees Union, the exclusive representative of
 its bargaining unit employees, by dealing directly with the husband of
 the employee grievant rather than with the exclusive representative.
 
    (b) 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 action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Upon request, attempt to resolve Verna Brady's grievance by
 dealing directly with the National Treasury Employees Union, the
 exclusive representative of its bargaining unit employees.
 
    (b) Post at its facility at the Memphis Service Center, 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 Memphis Service Center, or his designee, and shall be
 posted and maintained for 60 consecutive days thereafter, in conspicuous
 places, including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 insure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region 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., March 7, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., 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 attempt to resolve a unit employee's grievance filed
 pursuant to the grievance procedure set forth in our negotiated
 agreement with the National Treasury Employees Union, the exclusive
 representative of our bargaining unit employees, by dealing directly
 with the husband of the employee grievant rather than with the exclusive
 representative.  WE WILL NOT in any like or related manner interfere
 with, restrain, or coerce our employees in the exercise of rights
 assured by the Federal Service Labor-Management Relations Statute.  WE
 WILL, upon request, attempt to resolve Verna Brady's grievance by
 dealing directly with the National Treasury Employees Union, the
 exclusive representative of our bargaining unit 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
 questions concerning this Notice or compliance with its provisions, they
 may communicate directly with the Regional Director, Federal Labor
 Relations Authority, Region IV, whose address is:  Suite 501, North
 Wing, 1776 Peachtree Street, NW., Atlanta, Georgia 30309 and whose
 telephone number is:  (404) 881-2324.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
 
                                       Case No. 4-CA-20050
    Harry G. Mason, Esq.
       For the Respondent
 
    Linda J. Norwood, Esq.
       For the General Counsel
 
    Steven P. Flig
       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 July 26, 1982
 by the Regional Director for the Federal Labor Relations Authority,
 Atlanta, Georgia Region, a hearing was held before the undersigned on
 August 24, 1982 at Memphis, Tennessee.
 
    This case arose under the Federal Service Labor-Management Relations
 Statute (herein called the Statute).  It is based upon a first amended
 charge filed on July 22, 1982 by National Treasury Employees Union
 (herein called the Union), against Department of Treasury, Internal
 Revenue Service, Memphis Service Center (herein called Respondent).
 
    The Complaint alleged, in substance, that on or about August 20, 1981
 Respondent by-passed the Union, the exclusive bargaining representative
 of its employees, and attempted to resolve a grievance theretofore filed
 by employee Verna C. Brady by meeting with James Brady notwithstanding
 the fact that the Union represented Verna C. Brady in respect to said
 grievance - all in violation of Section 7116(a)(1) and (5) of the
 Statute.
 
    Respondent filed an answer dated August 6, 1982 which denied the
 material allegation in the Complaint as well as the commission of any
 unfair labor practices.
 
    All parties were represented at the hearing.  Each was afforded an
 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 herein, from my observation of the witnesses
 and their demeanor, and from all of the testimony and evidence addressed
 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
 collective bargaining representative of Respondent's professional and
 non-professional employees, excluding management officials, supervisors,
 and other specified classifications.
 
    2.  The aforesaid appropriate unit of Respondent's employees is
 covered by a National Agreement effective by its terms from January 26,
 1981 until January 26, 1985.  The said agreement contains provisions,
 inter alia, regarding the filing of grievances by employees and the
 attendant procedural steps to be followed in the processing thereof.
 
    3.  Under date of April 9, 1981, and pursuant to Article 33 of the
 Agreement, unit employee Verna Brady, a GS-5 staffing clerk, filed a
 grievance with Respondent concerning her "Harassment, Insufficient
 Training, and Unfair Evaluations." Certain specified articles of the
 said Agreement were alleged in the grievance to have been violated by
 the employer.  Verna Brady requested, as relief in the grievance, that
 the harassment cease;  that Respondent render complete and proper
 training;  that the employer apologize and remove documentation;  that
 three unfair evaluations be corrected and resubmitted.  The grievant
 also designated Deborah Hailey, Union Steward, as her official union
 representative in the matter.  /3/
 
    4.  Between April 21, 1981 and June 18, 1981 Verna Brady's grievance
 was processed through four steps of the grievance procedure pursuant to
 the collective bargaining agreement.  Meetings were held at each step
 and management, in each instance, disagreed that Verna Brady had been
 harassed, or that she received improper training.  Respondent also
 denied that it violated the Agreement re the evaluations which were the
 subject of the grievance.
 
    5.  Following the fourth step grievance meeting on June 18, 1981, J.
 D. Smith, Chief, Resources Management Division, sent a letter dated June
 26, 1981 to Union representative Katy Brown.  Although he declared that
 no violation existed on the part of Respondent of the Agreement, Smith
 stated he would be willing to move Verna Brady out of her present
 position.  Accordingly, he offered two positions to the employee as
 follows:
 
          (a) Supply Clerk - GS-5 - Facilities Management Branch.  This
       position required weight lifting which would necessitate Verna
       Brady having a prior physical examination.
 
          (b) Clerk-Typist - GS-3 - Facilities Management Branch.
 
 In the aforesaid letter Smith also stated that his offer to move the
 employee was in full and final settlement of the grievance;  that "if
 you accept this offer please advise me in writing by July 13, 1981, and
 indicate which position Ms. Brady accepts." Verna Brady declined both
 positions.  In the one instance the work was not in line with her usual
 duties and required much physical strength;  in the other, the job was
 not comparable to her customary one.
 
    6.  Subsequent to the foregoing offers being made, another position
 was offered grievant Brady via the Union.  Respondent indicated it would
 give the latter a GS-4 job in the Collection Branch.  However, since the
 branch chief could not tell Verna where the position would be located,
 she refused to accept same.
 
    7.  During the pendency of her grievance at the fifth step Verna
 Brady became ill, and on August 19, 1981 she went home from work.  She
 did not attend the fifth step grievance meeting, but Union
 representative Brown was present on Verna's behalf.
 
    8.  On or about August 20 James Brady, husband of the grievant,
 telephoned William J. Lunsford, Chief of Labor Relations for Respondent.
  Brady told Lunsford he was concerned about his wife, Verna, who was
 very upset as a result of the events befalling her at work.  Brady
 stated he would like to talk to Lunsford and discuss the matter.  /4/
 The management official replied he would have to check and ascertain if
 it was alright to confer with the grievant's husband.  Accordingly,
 Lunsford discussed it with Smith and Jerry Keith, Chief of Personnel,
 and they decided it was permissible since Lunsford was not involving
 himself in the grievance but only attempting to respond to Brady's
 concern.  Thus, a meeting was arranged for a few days later.
 
    9.  Several days after the telephone call James Brady prepared to
 leave in the morning to meet the Chief of Labor Relations as scheduled.
 Verna Brady inquired as to her husband's leaving the house.  James told
 his wife he was going to meet with Lunsford to discuss her work
 situation;  that perhaps a way could be found to resolve the matter so
 Verna could overcome her illness caused by the pressure and tension.
 Verna Brady replied that it would not help, and that it was against the
 rules for Lunsford to say anything.
 
    10.  At the meeting between Brady and the management representative,
 on or about August 21, the grievant's husband told Lunsford that his
 wife felt she was being treated unfairly.  Lunsford advised Brady that
 the latter's wife had been making a number of errors;  that Respondent
 had to warn her re her performance;  that unless she improved some
 action to resolve the problem would be taken, either a removal or
 downgrade.  He remarked that the employer had offered Verna three
 positions;  that the GS-4 file clerk position with Collections Branch
 was still open and if Verna would accept it, the performance problem
 would be resolved and they could destroy any records of her errors and
 counseling sessions.  James Brady asked why his wife could not receive a
 GS-5 and Lunsford replied it could not be done because of documentation;
  that as soon as she qualifies in the new job Verna would have her 5
 returned.  The grievance itself was not discussed.  /5/
 
                                Conclusions
 
    General Counsel submits that the action taken by Respondent's
 official, W. Lunsford, on or about August 20 when he met with the
 grievant's husband was in direct contravention of the Statute.  It is
 contended that in dealing with James Brady and offering, or renewing an
 offer of, a job to his wife via Brady, Respondent was attempting to
 resolve the pending grievance;  that such conduct constituted a
 by-passing of the Union - Verna Brady's bargaining representative - in
 violation of Section 7116(a)(1) and (5) of the Statute.
 
    It is urged by Respondent that no attempt was made by Lunsford to
 settle the grievance, but the meeting was merely to accommodate Verna
 Brady's husband because of the latter's concern for his wife's health.
 Further, that the management representative was not "dealing" directly
 with James Brady;  that he merely repeated an offer of a position which
 had been offered previously to the grievant.  Moreover, Respondent
 insists that assuming arguendo the meeting was "technically improper,"
 any violation is, in reality, de minimus in nature so that no remedial
 order is warranted.
 
    It is true that all communications between management and employees,
 or their personal representatives, are not prohibitive.  It was
 recognized under Executive Order 11491, as amended - the predecessor to
 the Statute herein - that the content of the communication and the
 circumstances surrounding it must be considered.  However,
 communications which amounted to an attempt to by-pass the exclusive
 representative and deal directly with employees, or which threaten a
 promise benefit to employees were deemed violative of the Order.
 National Aeronautics and Space Administration (NASA), Washington, D.C.,
 A/SLMR No. 457, 4 A/SLMR 806;  Department of the Navy, Naval Air
 Station, Fallon, Nevada, A/SLMR No. 432, 4 A/SLMR 590, FLRC No. 74A-90.
 
    The rights and responsibilities of the collective bargaining
 representative were codified under the Statute.  Section 7114 defines
 these rights and duties and articulates clearly the obligation of an
 agency to negotiate with union representatives concerning conditions of
 employment.  /6/ Failure to abide by this obligation results in a
 violation of Section 7116(a)(5) of the Statute.  Further, adherence to
 this duty to bargain with the Union representing employees requires that
 management not deal with employees in lieu thereof.  The Authority has
 acknowledged this requirement and frowned upon management by-passing the
 exclusive representative in the matters involving personnel practices,
 policies, or working conditions.  (See and Compare Kaiserslautern
 American High School et al., 9 FLRA No. 28 where direct dealing with
 employees to gether information re employee morale was held not to
 constitute a rejection of collective bargaining or an illegal by-pass of
 the Union).
 
    Applying the foregoing principle to the case at bar.  I am
 constrained to conclude that, in meeting with the grievant's husband,
 management did by-pass the Union herein.  While Respondent's intention
 may have been laudable -- to offset Brady's concern for his wife's
 strain and stress - its official went beyond proper bounds during the
 discussion of Verna Brady's work performance.  Thus, Lunsford did not
 confine his talk to the reasons for management's evaluation of Verna's
 performance.  Rather did he offer, or renew an offer, of another job for
 the grievant with the understanding that acceptance thereof would solve
 the problem.  Moreover, Lunsford agreed to destroy records of Verna's
 errors if the employee took the GS-4 position in the Collections Branch.
  Such an approach constitutes, in my opinion, an attempt to deal with
 James Brady in derogation of its collective bargaining representatives.
 Although the Union continued to represent Verna at all stages of the
 grievance procedure, Lunsford offered to dispose of the entire "problem"
 - which would have included a settlement of the grievance - via his
 negotiation or discussion with James Brady.  Negotiations of this type
 should properly be made with the bargaining agent which has represented
 Verna at the five steps of the grievance procedure.  By dealing with her
 husband Respondent has flouted its responsibility in this regard and run
 afoul of the Statute.
 
    Respondent argues that, assuming arguendo, it violated the Statute,
 the violation is de minimus.  In support of this argument Respondent
 cites Norfolk Naval Shipyard, 4 FLRA No. 91.  In the cited case the
 employer's supervisor refused to allow a union steward to be released
 from duty on his own recognizance to conduct union related business, a
 long-standing practice.  Upon being informed of his error, the
 supervisor allowed the steward to be released.  The Authority concluded
 it would not effectuate the purposes and policies of the Statute to find
 a violation or issue a remedial order in view of the immediate
 rectification of the supervisor's conduct.
 
    I do not view the situation herein to be analogous to that posed in
 the Norfolk Naval case, supra.  Direct dealings with someone other than
 the bargaining representative over personnel matters, or working
 conditions, which affect the working conditions of employees is not de
 minimus.  Such negotiations undermine the status of the union and are a
 clear interference with the rights of employees under the Statute.  They
 are in marked contrast to an isolated act which was committed by the
 supervisor in the cited case.  The attempt by Lunsford to resolve the
 matter (grievance) with the grievant's husband was not an isolated
 incident which results in a brief interruption or where the improper
 conduct was terminated immediately after it occurred.  See Vandenberg
 Air Force Base, et al., FLRC No. 74A-77, 3 FLRC 491 (1975).  It went to
 the heart of the responsibility to honor collective bargaining
 obligations.  Accordingly, and on the basis of the foregoing, I conclude
 that in dealing with James Brady re the personnel matter of Verna Brady
 and offering the employee a position through her husband to resolve her
 pending grievance, Respondent violated Section 7116(a)(1) and (5) of the
 Statute.
 
    Accordingly, and in view of the foregoing, I recommend the Authority
 issue the following:
 
                                   ORDER
 
    Pursuant to Section 2423.10 of the Federal Labor Relations
 Authority's Rules and Regulations, and Section 7118 of the Statute, it
 is hereby ordered that the Department of Treasury, Internal Revenue
 Service, Memphis Service Center, shall:
 
    1.  Cease and desist from:
 
          (a) By-passing the National Treasury Employees Union, the
       exclusive representative of its bargaining unit employees, and
       holding a meeting or discussion with employees, in respect to
       personnel policies and practices, employee grievances, or
       conditions of employment, without first notifying the National
       Treasury Employees Union and affording it the opportunity upon
       request to be present during such meeting or discussion.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Federal Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Notify the National Treasury Employees Union, the exclusive
       representative of its bargaining unit employees, of any proposed
       meeting or discussion with any employees, in respect to personnel
       policies and practices, employee grievances or conditions of
       employment, and affording the National Treasury Employees Union an
       opportunity upon request to be present during such meeting or
       discussion.
 
          (b) Post at its facility at the Memphis Service Center, 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 Director of the Memphis Service
       Center, and shall be posted and maintained by him for 60
       consecutive days thereafter in conspicuous places, including all
       bulletin boards and places where notices to employees are
       customarily posted.  Reasonable steps shall be taken by the
       Director to insure that such notices are not altered, defaced, or
       covered by any other material.
 
          (c) Pursuant to Section 2423.20 of the Authority's Rules and
       Regulation, 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.
 
                                       WILLIAM NAIMARK
                                       Administrative Law Judge
 
 Dated:  December 21, 1982
         Washington, DC
 
 
 
 
                                 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 by-pass the National Treasury Employees Union, the exclusive
 representative of the bargaining unit employees, and hold a meeting or
 discussion with employees, in respect to personnel policies and
 practices, employee grievances, or conditions of employment, without
 first notifying the National Treasury Employees Union and affording it
 an opportunity upon request to be present during such meeting or
 discussion.  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
 notify the National Treasury Employees Union, the exclusive
 representative of the bargaining unit employees, of any proposed meeting
 or discussion with any employees, in respect to personnel policies and
 practices, employee grievances, or conditions of employment, and afford
 it the opportunity upon request to be present during such meeting or
 discussion.
                                       . . . (Agency or Activity)
 
 Dated:  . . .  By:  . . . (Signature)
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In addition to the precedent relied upon by the Judge, see also
 National Federation of Federal Employees, Local 1001 and Department of
 the Air Force, Vandenberg Air Force Base, California, 15 FLRA No. 154
 (1984) (Provision 1) (wherein the Authority found that the clear intent
 of Congress was, with one stated exception in section 7121(b), to
 preclude unit employees from being represented in the negotiated
 grievance procedure by any person or organization other than the
 exclusive representative).
 
 
    /2/ The Authority agrees with the General Counsel's exception to the
 use of the word "employees" in section 1(a) and 2(a) of the Judge's
 recommended Order.  The Order is modified to reflect the violation
 found,
 
 
    /3/ The parties stipulated that the Union's Chapter President, Katy
 Brown and Deborah Hailey represented