19:0353(48)CA - IRS (District, Region, National Office Units) and NTEU -- 1985 FLRAdec CA

[ v19 p353 ]
The decision of the Authority follows:

 19 FLRA No. 48
 Charging Party
                                            Case No. 3-CA-1889
                            DECISION AND ORDER
    The Administrative Law Judge issued the attached 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.  The Judge further recommended that other
 allegations of the complaint be dismissed as untimely.  Thereafter, the
 Respondent filed exceptions to the Judge's Decision and the Charging
 Party filed an opposition to the 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, conclusions and recommended Order only to the extent
 consistent herewith.
    The complaint alleges, and the Judge found, that the Respondent,
 Internal Revenue Service, bypassed the National Treasury Employees Union
 (NTEU), its employees' exclusive representative, in violation of section
 7116(a)(1) and (5) of the Statute, /1A/ by distributing questionnaires
 to unit employees regarding their conditions of employment.  The
 Respondent excepts to the Judge's conclusion that the distribution of
 the questionnaires violated the Statute, contending that the use of such
 questionnaires was a proper information gathering mechanism being
 utilized as part of a comprehensive study of its Appeals Organization.
 The Authority agrees.
    As the Authority has previously found, the prohibition on
 management's negotiating or dealing directly with unit employees in
 derogation of its duty to bargain with an exclusive representative does
 not in every case prevent an agency from seeking information or opinions
 directly from its employees.  See Department of Health and Human
 Services, Social Security Administration, Bureau of Field Operations,
 San Francisco, California, 10 FLRA 115 (1982);  and Internal Revenue
 Service (District, Region, National Office Unit), 11 FLRA 69 (1983),
 enf'd sub nom. National Treasury Employees Union v. FLRA, 725 F.2d 126
 (D.C. Cir. 1984).  See also, Kaiserslautern American High School,
 Department of Defense Dependents Schools, Germany North Region, 9 FLRA
 184 (1982).  Thus, as part of its overall management responsibility to
 conduct operations in an effective and efficient manner, an agency may
 question employees directly provided that it does not do so in a way
 which amounts to attempting to negotiate directly with its employees
 concerning matters which are properly bargainable with its employees'
 exclusive representative.  In this regard, as the Authority has
 previously noted, management must have the latitude to gather
 information, including opinions, from unit employees to ensure the
 efficiency and effectiveness of its operations.  See, e.g., Department
 of Health and Human Services, Social Security Administration, Bureau of
 Field Operations, San Francisco, California, supra.
    In the circumstances of this case, the Authority finds that the
 Respondent did not bypass the employees' exclusive representative, NTEU,
 in violation of section 7116(a)(1) and (5) of the Statute.  Thus, the
 Respondent notified NTEU that it was going to conduct a study of its
 Appeals Organization, and gave NTEU copies of the subject questionnaires
 before distributing them to unit employees.  Moreover, the Respondent
 told NTEU that "(s)hould the Appeals Division determine that changes are
 necessary as a result of this study and such changes affect bargaining
 unit employees, you will be properly notified." In a written response to
 NTEU's concern regarding certain questions included on the
 questionnaires, the Respondent further stated, "(S)hould the (study)
 team make any recommendations which management accepts that affects
 bargaining unit employees, you will be properly notified.  Subsequent to
 such notification, you will be provided, if requested, with any
 information from the study (including responses to this question) which
 is necessary for negotiation." Thus, rather than bypassing the exclusive
 representative, the Respondent recognized its obligation to bargain with
 NTEU over any future changes affecting unit employees' conditions of
 employment which might result from the study, and, in the same
 correspondence, stated that "(a)t this point in time we have no other
 intentions for this information other than compiling it for review by
 the study team." Therefore, the Authority concludes that the
 Respondent's distribution of the questionnaires was not an improper
 direct communication with its employees in derogation of its duty to
 bargain with the exclusive representative.  Rather, the questionnaires
 were an information gathering mechanism, in connection with the
 management function of studying its operations.  Further, there is no
 indication that through the questionnaires the Respondent attempted to
 deal or negotiate directly with unit employees concerning their
 conditions of employment or in any manner created the appearance of
 doing so.  Accordingly, the Authority concludes that the complaint
 herein must be dismissed.
    IT IS ORDERED that the complaint in Case No. 3-CA-1889 be, and it
 hereby is, dismissed in its entirety.  
 Issued, Washington, D.C., July 26, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
                                       Case No.: 3-CA-1889
    Michael Sussman, Esq.
       For the Respondent
    Joanne Ochsman
       For the Charging Party
    Susan Shinkman, Esq.
       For the General Counsel, FLRA
       Administrative Law Judge
                           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.
 7101, et seq., 92 Stat. 1191 (hereinafter referred to as the Statute)
 and the Rules and Regulations of the Federal Labor Relations Authority
 (FLRA), 5 C.F.R.Chapter XIV, 2410 et seq.
    A charge was filed on January 19, 1981, by the National Treasury
 Employees Union (hereinafter called the Union and/or NTEU) against
 Internal Revenue Service (District Region, National Office Units)
 (hereinafter called Respondent and/or IRS).  NTEU filed an amended
 charge on March 25, 1981, and a second amended charge on May 22, 1981.
 Pursuant to the above described charge and amended charges the General
 Counsel of the FLRA, by the Director of Region 3, issued a Complaint and
 Notice of Hearing on June 10, 1981, alleging that IRS violated Sections
 7116(a)(5) and (1) of the Statute by issuing questionnaires to
 employees, thereby bypassing NTEU, the collective bargaining
 representative of those employees.  IRS filed an Answer denying that it
 had violated the Statute.
    A hearing in this matter was conducted before the undersigned in
 Washington, D.C.  The General Counsel of the FLRA, IRS and NTEU were
 represented and afforded full opportunity to be heard, to examine and
 cross-examine witnesses, to introduce evidence and to argue orally.
 Post hearing briefs were filed and have been fully considered.
    Based upon the entire record in this matter, my observation of the
 witnesses and their demeanor, and from my evaluation of the evidence, I
 make the following:
                             Findings of Fact
    At all times material herein NTEU has been the exclusive collective
 bargaining representative for a nationwide unit of IRS employees,
 including employees in IRS' Appeals Organization.  At all times
 material, Frank Ferris, NTEU Director of Negotiations, acted as chief
 spokesman for the Union.
    By letter dated May 15, 1980, IRS notified NTEU that IRS was about to
 conduct a survey of its Appeals Organization, and further that IRS would
 utilize, among other procedures, interviews and questionnaires to
 accomplish its survey.  By letter dated May 23, 1980, IRS forwarded to
 NTEU copies of questionnaires which were to be distributed to Senior
 Auditors and Appeals Auditors.  One questionnaire asks, among other
 questions, for the employees' "general reaction" to the possible use of
 programmable calculators, micro computers, NCR Terminals, etc. and for
 an estimate of the amount of training that would be required in order to
 utilize the equipment.  The questionnaire also asks the employee to
 "indicate any career ladder opportunities in which you are interested."
 Another attached questionnaire asks the Appeals Auditors to indicate how
 significant certain listed skills, knowledge and abilities are to the
 successful performance of the job.  There were a number of questions
 inquiring as to the Auditors' judgments as to the value of certain past
 experience (e.g. prior IRS experience) in performing their job as well
 as how important for success were training courses.  On May 28, 1980,
 Ferris sent a letter to IRS Labor Relations Officer Michael P. Dolan in
 which, among other items, Ferris asked for a copy of all data produced
 by the study of the Appeals Organization.  In addition Ferris stated:
          "Furthermore, I want to remind you that we believe you must
       limit your choice of employees for desk audit to those chosen by
       NTEU.  Consequently, please contact the local NTEU president in
       each office who will give you a list of people we will make
       available for interviews.  Naturally, since the desk audits will
       also be formal meetings, we expect that local union
       representatives will be invited to attend."
 Dolan responded to Ferris by letter dated June 12, 1980, in which he
          "While I intend to address this issue by separate letter I will
       at this time confirm Sue's discussions with you to the extent that
       we disagree with your position that you are entitled to sit in on
       interviews.  Furthermore, we do not intend to provide you with the
       data collected until such time as management decides to make some
       changes.  At that time you will be notified and provided with all
       necessary and relevant information."
          "Our position on this matter is the same as I discussed
       regarding the Examination Managers Survey."
 In a letter dated June 16, IRS advised NTEU, with respect to a similar
 case, that NTEU could not play any part in the interviews of employees
 since such interviews would be "simply an information gathering
    On October 6, 1980, IRS forwarded to NTEU copies of questionnaires
 which were to be distributed to other employees in the Appeals
 Organization, specifically Appeals Officers, Appeals Clerks/Appeals Aids
 and Record Clerks.  The questionnaire directed to the Appeals Officer
 asked, among other questions:
          "1.  Are you satisfied with the training provided for Aids?
       Yes . . .  No . . .
          "2.  If the answer to #1 above is "No", what additional
       training would you recommend?
          "3.  Are you satisfied with the assignment of the Aids in your
       office (pool concept, 1 Aid to 2/3 Appeals Officers, etc.?) Yes .
       . .  No . . .
          "4.  If the answer to #3 above is "No", what changes would you
                                .  .  .  .
          "11.  Do you have any suggestions that you believe would
       improve the efficiency of clerical operations?
          "Do you have suggestions for improvement of your job as an
       Appeals Clerk or as an Appeals Aid?  Yes . . .  No . . .
          "If "Yes", please explain:"
 Further, with respect to the questionnaires directed to Records Clerks
 and Appeals Clerk/Appeals Aid, the employees were asked if their
 training had been adequate and if they had any suggestions for improving
 their jobs.  NTEU sent a letter to IRS on October 20, 1980 in which
 Ferris stated:
          ". . . I urge you not to implement it because of the improper
       nature of several questions.  Those questions which seek the
       opinion of unit employees about working conditions or changes
       therein they would like to see are violations of our rights under
       5 U.S.C. 7100 et seq.
          "In addition, I invoke our right to negotiate over any
       negotiable issues.  Please prepare a briefing after which I will
       forward proposals."
 By letter dated November 26, 1980, IRS responded to NTEU's October 20
 letter.  IRS rejected NTEU's request that the questionnaires not be
 distributed and that the Union be consulted because "this is simply an
 information gathering mechanism."
    Commencing in September or October 1980, the questionnaires which
 were sent to NTEU on October 6, 1980, were distributed nation wide to
 Appeals Officers, Appeals Clerks/Appeals Aids and Record Clerks in the
 IRS' districts.  IRS distributed these questionnaires to the bargaining
 unit employees without negotiating with NTEU.  Other Incidents
    NTEU President Vincent L. Connery was advised by IRS by letter dated
 November 6, 1978, /1/ of studies to be conducted in various district
 offices.  The attached questionnaires inquired into the employees'
 opinions as to training.
    NTEU President Vincent L. Connery was advised by IRS by letter dated
 December 20, 1979, concerning questionnaires to be distributed to
 procurement officers, soliciting the opinions of the officers concerning
 their training.  There was a dispute between IRS and NTEU as to whether
 or which procurement officers were in the collective bargaining unit.
 The Union did not ask IRS not to distribute the questionnaires or to
 discuss them.
    By letter dated September 2, 1980, IRS advised Connery of
 questionnaires to be distributed to Revenue Officers.  The questionnaire
 inquired into the educational background of the Revenue Officer and
 which prior work experiences should be considered beneficial to the
 performance of the job.  NTEU did not request IRS not to distribute
 these questionnaires nor did NTEU request to bargain about these
    By letters dated November 21, 1980, March 5, 1981, June 1, 1981, and
 June 2, 1981, IRS advised NTEU of questionnaires IRS intended to
 distribute to employees and NTEU did not request IRS not to distribute
 any of these questionnaires, nor did NTEU request to bargain about the
 questionnaires.  On September 11, 1980, NTEU filed an unfair labor
 practice charge in Case No. 3-CA-1458 and on February 6, 1981, NTEU
 filed an unfair labor practice charge in Case No. 3-CA-1964.  Both cases
 involved the Union's objection to IRS conducting studies which involve
 interviewing unit employees without permitting the Union to be present.
                        Discussion and Conclusions
    In Department of Health, Education and Welfare, Social Security
 Administration, Bureau of Retirement and Survivors Insurance,
 Northwestern Program Center, 1 FLRA 507 (1979), (hereinafter called the
 HEW Case) the FLRA affirmed the Administrative Law Judge who found that
 the distribution of a questionnaire directly to employees by the agency,
 without the consent of the union, constituted a violation of Sections
 19(a)(1) and (6) of Executive Order 11491.  /2/ The Administrative Law
 Judge, as affirmed by the Authority, analyzed the collective bargaining
 relationship among the union, agency and employees.  He found that the
 soliciting of opinions of employees, by the agency, concerning
 collective bargaining matters, breached the obligation that the agency
 owed to the union, the only formal representative who speaks for all
 unit employees.  It is fundamental that only the collective bargaining
 representative of the unit may speak and represent employees in the
 collective bargaining unit concerning conditions of employment.  In the
 collective bargaining process this is one of the union's most
 fundamental and basic rights and duties.  When an agency attempts to
 communicate with employees and to solicit the opinions of those
 employees concerning terms of employment, without the permission of the
 union, the agency is attempting to bypass the collective bargaining
 representative and is attacking and undermining the very basis of the
 collective bargaining status of the union.  cf. HEW Case, supra.  /3/
 Accordingly, such conduct on the part of an agency is in violation of
 its most basic collective bargaining obligations as set forth in the
 Statute and thus would violate Sections 7116(a)(5) and (1) of the
 Statute.  In this regard it must be noted that the questionnaires in the
 subject case dealt with matters which were terms and conditions of
 employment and were the subject of bargaining.  /4/ Further, certain of
 the questions were substantially analogous to the questions raised in
 the HEW Case, supra.  In that case it was held that such matters had to
 be raised only with the collective bargaining representative.  IRS'
 contention that the use of the questionnaire is "an information
 gathering mechanism" and, therefore, is somehow privileged, is rejected.
  This argument completely ignores NTEU's status as the sole
 representative who can speak for the employees concerning terms and
 conditions of employment.  Similarly the perception expressed by IRS
 that bypassing is a violation only of Section 7116(a)(1) of the Statute
 is based on a complete misconception of IRS' obligation to bargain only
 with NTEU.  Thus, IRS cannot solicit employee opinions concerning
 matters that are subject to bargaining, and to do so violates the IRS'
 obligation to bargain with NTEU.
    IRS contends that the charges filed in the subject case were not
 timely filed within the requirements set forth in Section 7118(a)(4) of
 the Statute, which provides that " . . . no complaint shall be issued
 based on any alleged unfair labor practice which occurred more than 6
 months before the filing of the charge with the Authority." The original
 charge in the subject case was filed on January 19, 1981.  /5/ IRS
 contends that the alleged unfair labor practice really occurred on May
 15, 1980, when IRS advised NTEU that it intended to conduct the study of
 Appeals Organization and on May 23, 1980, when the first set of
 questionnaires were sent to NTEU.  NTEU was on notice by May 23, 1980,
 concerning the study of the Appeals Organization and of the
 questionnaires to be sent to certain employees.  Pursuant to the terms
 of Sections 7118(a)(4) of the Statute any unfair labor practice charge
 raising these questionnaires would have to have been filed within six
 months of May 23, 1980, or at least within six months of a refusal by
 IRS of a timely request by NTEU that the questionnaires not be sent.
 Accordingly, since no timely charge was filed with respect to the May
 23, 1980 questionnaires, it is concluded that the complaint in the
 subject case, insofar as it refers to the May 23, 1980 questionnaires
 should be dismissed as untimely.  However, IRS' contention that the May
 23 and October 6, 1980 questionnaires are so similar that the charge,
 insofar as it refers to the October 6 questionnaire, must also be
 dismissed because of untimeliness is rejected.  The October 6
 questionnaires are separate and distinct from the May 23 questionnaires
 and were being directed to different employees, although both groups of
 employees were part of the study of the Appeals Organization.  It would
 be unreasonable to require that NTEU object to the October 6
 questionnaires before it was advised what specific questions would be
 asked.  It is possible, and indeed it might have been hoped, that these
 October 6 questionnaires would have been legal.  Thus, the fact that
 NTEU failed to file a timely charge with respect to the May 23
 questionnaires, does not mean that it could not file a timely charge
 with respect to the October 6, 1980 questionnaire.  It is concluded that
 the charge is timely with respect to the October 6, 1980 questionnaires.
    IRS contends that, by allowing the May 23 questionnaires to be
 utilized, NTEU waived its right to negotiate with respect to the October
 6, 1980 questionnaires.  Further, IRS seems to urge that because of the
 use of questionnaires in the past there is no change in conditions of
 employment.  Again, both of these arguments are based on a
 misunderstanding of the underlying collective bargaining relationship
 and the obligations that flow from this relationship.
    The right of NTEU to bargain and represent the employees in the unit
 and to be their sole spokesman is basic and fundamental to the very
 nature of collective bargaining.  It is NTEU that determines, after
 notice, if it wishes to permit IRS to bargain directly with the
 employees.  With respect to the May 23 questionnaires NTEU, after
 notice, did not refuse to permit IRS to bypass the Union.  NTEU, in
 effect, chose to permit the employees to voice their opinions directly
 to IRS.  However, NTEU at no time indicated it was waiving its basic
 right to be the sole collective bargaining spokesman with respect to
 other situations and questionnaires.  Any waiver of a statutory right,
 especially with respect to one that goes to the heart of the union
 status as collective bargaining representative, must be clear and
 unequivocal.  Department of the Air Force, Scott Air Force Base, 5 FLRA
 No. 2 (1981) and Department of the Navy, Portsmouth Naval Shipyard, 4
 FLRA No. 82 (1980).  No such waiver is present in the subject case.
    Similarly, no clear practice existed so as to make such bypassing an
 existing working condition.  In so concluding, it must be noted that
 many of the questionnaires relied upon by IRS to establish such an
 existing practice were issued after the subject situation arose;
 another arose before the NTEU was recognized for a nation wide unit;
 and another involved a disputed unit.  These uses of questionnaires,
 therefore, are not considered as very persuasive in determining whether
 there was any established working condition involving bypassing the
 Union by using questionnaires.  The remaining use of questionnaires
 relied upon by IRS was too limited to establish a working condition.
 This is particularly the case where NTEU had repeatedly objected and
 filed unfair labor practice charges with respect to the IRS practice of
 trying to solicit information directly from employees by interview.
    In light of all of the foregoing, therefore, the IRS contentions that
 the use of questionnaires to bypass NTEU was an existing working
 condition or that NTEU had waived its right not to be so bypassed are
 rejected.  Accordingly it is concluded that by issuing the
 questionnaires in September/October 1980, IRS bypassed the Union and
 thus violated Sections 7116(a)(5) and (1) of the Statute.
    NTEU urges that a status quo ante remedy is appropriate.  Any change
 in working conditions resulting from the use of the questionnaires would
 have required notice to NTEU and an opportunity to bargain.  If such
 notice and opportunity to bargain had not been given, the status quo
 ante remedy would be appropriate in that case.  However, in the subject
 case, involving only bypassing without any allegation of unilateral
 change, it is deemed that the status quo ante remedy is not appropriate.
  cf. HEW Case, supra.
    Having found and concluded that IRS violated Sections 7116(a)(5) and
 (1) of the Statute, I recommend that the Authority issue the following:
    Pursuant to Section 2423.29 of the Federal Labor Relations