20:0046(6)CA - Treasury, IRS, Chicago IL. and NTEU and NTEU Chapter 10 -- 1985 FLRAdec CA



[ v20 p46 ]
20:0046(6)CA
The decision of the Authority follows:


20 FLRA No. 6

UNITED STATES DEPARTMENT 
OF THE TREASURY, INTERNAL 
REVENUE SERVICE
CHICAGO, ILLINOIS 

                                         Respondent 

and 

NATIONAL TREASURY EMPLOYEES 
UNION, ANDNTEU CHAPTER 10 

                                          Charging Party 

                                              Case No. 5-CA-860

                           DECISION AND ORDER

   This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.

   Upon consideration of the entire record, including the stipulation of
facts, accompanying exhibits, and the contentions of the parties, the
Authority finds:

   The complaint alleges that the Respondent violated section 7116(a)(1)
and (5) of the Federal Service Labor-Management Relations Statute (the
Statute) /1/ when, on or about September 24, 1980, a supervisor issued
memorandums requiring two unit employees to keep daily logs of time
spent on all cases assigned to them.  It is alleged that such
memorandums were changes in terms and conditions of employment of unit
employees which were implemented without affording the Union prior
notice and an opportunity to bargain concerning the changes.  The
Respondent denies that its actions violated the Statute.

   The record indicates that George Drew, one of the Respondent's
supervisors, issued a separate memorandum to two unit employees, John
Lechner and Gerald Burkman, directing them to keep a log of their daily
time charges in order to ensure that they were properly utilizing their
time.  Drew's decision to require the two unit employees to keep daily
logs was prompted by the employees' inability to account for the
greater-than-average time spent by them in processing their assigned
cases.  The daily logs were to be used to identify and aid in correcting
any existing problems, and to evaluate the employees' performance.
Normally the only timekeeping requirement for employees in the
supervisor's section was the completion of a monthly form on which the
total time spent by an employee on each case is recorded, with no
breakdown of time spent on specific case activities.  There were 19 unit
employees in the section during the time in question.  The two noted
employees are the only ones in the section who ever have been required
to keep such logs.  Approximately two weeks after such requirement was
imposed, the employees' exclusive representative requested bargaining
with respect thereto.  The Respondent denied the request, stating that
there had been no change in personnel policies and practices.

   The General Counsel and the Charging Party assert the new daily log
requirement imposed by the Respondent changed the terms and conditions
of employment of unit employees and that such change had a substantial
impact on unit employees.  They argue that as a review of the new daily
log would be used to identify problems and evaluate employees' work
performance, further impact on employees would depend on the effect of
such a review on the employees' performance rating.  Also, it is argued
that the daily log conceivably could be used by the Respondent to
determine work standards and a case processing timetable which would
affect all bargaining unit employees.

   The Respondent asserts there has been no change in working
conditions.  Moreover, even assuming some change, Respondent argues that
the requirement for two unit employees to keep daily logs was a
management right under section 7106(a) of the Statute, /2/ and thus no
obligation to bargain with the Union existed.  Finally, the Respondent
argues that such requirement had no "substantial impact" on working
conditions, and therefore no duty to bargain over the impact and
implementation of the change arose.

   In agreement with the Respondent, the Authority finds that the
requirement to keep daily logs was a management right and that the
Respondent therefore had no obligation under the Statute to bargain over
the decision to use such logs.  /3/ On the issue of whether the
Respondent was obligated to bargain over procedures and appropriate
arrangements for unit employees adversely affected by its decision to
require daily logs, the Authority has held that "where an agency in
exercising a management right under section 7106 of the Statute, changes
conditions of employment of unit employees . . . , the statutory duty to
negotiate comes into play if the change results in an impact upon unit
employees or such impact was reasonably foreseeable." U.S. Government
Printing Office, 13 FLRA 203, 204-205(1983).  The Authority thereafter
held that "no duty to bargain arises from the exercise of a management
right that results in an impact or a reasonably foreseeable impact on
bargaining unit employees which is no more than de minimis." Department
of Health and Human Services, Social Security Administration, Chicago
Region, 15 FLRA No. 174(1984).  The Authority has also held that in
determining whether the impact or reasonably foreseeable impact of the
exercise of a management right on bargaining unit employees is more than
de minimis, the totality of the facts and circumstances presented in
each case must be carefully examined.  Thus, in Department of Health and
Human Services, Social Security Administration, Region V, Chicago,
Illinois, 19 FLRA No. 101(1985), the Authority looked to such factors as
the nature of the change (e.g., the extent of the change in work duties,
location, office space, hours, loss of benefits or wages and the like);
the temporary, recurring or permanent nature of the change (i.e.,
duration and frequency of the change affecting unit employees);  the
number of employees affected or foreseeably affected by the change;  the
size of the bargaining unit;  and the extent to which the parties may
have established, through negotiations or past practice, procedures and
appropriate arrangements concerning analogous changes in the past.  /4/
The Authority also emphasized therein that the factors considered in the
circumstances of that case were not intended to constitute an
all-inclusive list or to be applied in a mechanistic fashion.  Moreover,
the Authority noted that a determination as to whether the exercise of a
management right under section 7106(a) of the Statute gives rise to a
duty to bargain under section 7106(b)(2) and (3) will not necessarily
require in every case a determination as to whether the exercise of the
management right results in a change in a condition of employment having
an impact or a reasonably foreseeable impact on bargaining unit
employees which is more than de minimis, especially where there is no
indication that the nature and degree of impact is at issue in the case.
 However, in cases where it must be determined whether the nature and
degree of impact is more than de minimis, factors such as those listed
above will be considered.

   Based on the totality of the facts and circumstances presented in the
instant case, the Authority finds that the impact or reasonably
foreseeable impact on conditions of employment of unit employees caused
by requiring two unit employees to keep daily logs of time spent on all
cases assigned to them was no more than de minimis.  In reaching this
result, the Authority notes with respect to the nature of the change
that the requirement of keeping daily logs did not change the duties
assigned to the two employees involved, but was simply a more accurate
method of recording how the two employees performed their assigned
duties, and was instituted because of concern by their supervisor that
the two employees were not properly utilizing their time in performing
such assigned duties.  The duration of the change was indefinite, but
designed as a temporary measure because the required use of the daily
logs was intended to identify and correct any existing problems and to
evaluate the two employees' performance.  There is no evidence to
indicate that once the purpose for instituting the daily logs was
accomplished, such use would continue.  As to the number of employees
affected and the size of the bargaining unit, only two employees in a
unit of all professional and non-professional employees of the
Respondent were required to submit the daily logs in question here.
Further, there is no evidence that this requirement would be applied on
a wider scale or on a permanent basis, either within Drew's section or
activity-wide.

   Accordingly, based on the totality of facts and circumstances
presented, and noting particularly the slight nature of the change and
the small number of employees affected, the Authority finds that the
impact or reasonably foreseeable impact of the change on unit employees'
conditions of employment herein was no more than de minimis.  Therefore,
the Respondent was under no obligation to notify the Charging Party and
afford it an opportunity to request bargaining pursuant to section
7106(b)(2) and (3) of the Statute, and accordingly the complaint shall
be dismissed.

                                  ORDER

   IT IS ORDERED that the complaint in Case No. 5-CA-860 be, and it
hereby is, dismissed.

   Issued, Washington, D.C., September 10, 1985

                                      Henry B. Frazier III, Acting
                                      Chairman
                                      William J. McGinnis, Jr., Member
                                      FEDERAL LABOR RELATIONS AUTHORITY






--------------- FOOTNOTES$ ---------------


   /1/ Section 7116(a)(1) and (5) 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/ Section 7106(a) provides, in pertinent part:

   Sec. 7106.  Management rights

         (a) Subject to subsection (b) of this section, nothing in this
      chapter shall affect the authority of any management official of
      any agency--

                                 * * * *

         (2) in accordance with applicable laws--

         (A) to . . . direct . . . employees in the agency(;  or)

         (B) to assign work . . .(.)


   /3/ The Authority has held that supervising and guiding employees is
"directing" employees, a management right within the meaning of section
7106(a)(2)(A) of the Statute.  See National Treasury Employees Union and
Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775
(1980), aff'd sub nom. National Treasury Employees Union v. Federal
Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982).  F