20:0046(6)CA - Treasury, IRS, Chicago IL. and NTEU and NTEU Chapter 10 -- 1985 FLRAdec CA
[ v20 p46 ]
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). Further, the Authority has held that management is exercising its right to assign work under section 7106(a)(2)(B), as well as to direct employees, by holding them accountable for meeting the standards set by management for the performance of their work. As the Authority has determined that "accountability encompasses management's right to an explanation . . . since mere statistical data alone may be insufficient," it must be concluded that a requirement to furnish data alone, as here, ipso facto is a management right. See Tidewater Virginia Federal Employees Metal Trades Council and Navy Public Works Center, Norfolk, Virginia, 15 FLRA No. 73(1984) (Provision 1). /4/ Additionally, Member McGinnis indicated in a separate concurring opinion that he would also consider, in determining de minimis issues, when the implementation of a change would involve or adversely affect unit employees in assessing the totality of the facts and circumstances presented.