20:0051(7)CA - Treasury, IRS, and IRS, Houston District and NTEU and NTEU Chapter 222 -- 1985 FLRAdec CA
[ v20 p51 ]
The decision of the Authority follows:
20 FLRA No. 7 UNITED STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE AND UNITED STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, HOUSTON DISTRICT Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 222 Charging Party Case No. 6-CA-30311 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. The General Counsel and the Charging Party filed exceptions to the Judge's Decision and the Respondent filed an opposition thereto. 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. The Authority adopts the Judge's dismissal of that portion of the complaint alleging that the Respondent unilaterally changed established working conditions by prohibiting the wearing of jeans by employees in the Centralized Service Branch (CSB) without first notifying and bargaining with the Charging Party in violation of section 7116(a)(1) and (5) of the Statute, /1/ on the basis that such allegation was untimely and therefore barred by section 7118(a)(4) of the Statute. /2/ In this regard, the Authority notes, in addition to the findings relied upon by the Judge, as follows: As referenced by the Judge, and amply supported by the record herein, the policy prohibiting the wearing of jeans by certain employees of CSB was announced by Respondent's supervisors at open meetings of employees upon the commencement of operations on November 15, 1982 and the Charging Party was invited to have a representative attend those meetings. The record discloses that thereafter, with rare exception, the rule against wearing jeans was consistently enforced, and the May 5, 1983 incident by which the Charging Party asserts it first learned of the policy was but a continuation of the open and undisguised enforcement of this rule. This, in addition to all the factors cited by the Judge, leads the Authority to conclude, in agreement with the Judge, that the Respondent's conduct did not preclude the Charging Party from filing the charge within six months of the November 15, 1982 meetings, at which the rule was announced. Accordingly, it is concluded that the charge in this respect was untimely filed and the complaint as to this aspect must be dismissed pursuant to section 7118(a)(4) of the Statute. ORDER IT IS ORDERED that the complaint in Case No. 6-CA-30311 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., September 10, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 6-CA-30311 Ronald F. Hood, Esq. For the Respondent Susan E. Jelen, Esq. For the General Counsel B. Craig Deats, Esq. 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 September 30, 1983, by the Regional Director for the Federal Labor Relations Authority, Region VI, a hearing was held before the undersigned on April 3, 1984 at Houston, Texas. /3/ This case arose under the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Statute). It is based on a charge filed on July 5, 1983 by National Treasury Employees Union and National Treasury Employees Union, Chapter 222 (herein called the Union) against United States Department of Treasury, Internal Revenue Service and United States Department of the Treasury, Internal Revenue Service, Houston District (herein called Respondent). The Complaint alleged, in substance, that: (a) since May 5, 1983 and continuing to date, Respondent has refused to bargain in good faith with the Union by unilaterally changing conditions of employment by implementing a dress standard at its Centralized Service Branch of the Houston District, without providing notice to the Union and an opportunity to bargain re said change; /4/ (b) since on or about May 6, 1983 Respondent has refused to furnish the Union data requested by it on said date relating to the aforesaid change in condition of employment, which date was reasonably available and necessary for negotiation of subjects within the scope of collective bargaining; (c) that the aforesaid refusals were violative of Sections 7116(a)(1) and (5) and 7116(a)(1) and (8) respectively of the Statute. Respondent's Answer, dated October 24, 1983, together with its amendment thereto made at hearing, denied the material allegations of the Complaint as well as the commission of any unfair labor practices. On March 15, 1984 the Regional Director, Region VI, issued a subpoena duces tecum directing the Respondent to furnish: Books, records, recordings and transcriptions thereof, memoranda, notes, reports, and any other documents showing a record of events and/or statements by any person at a meeting of the Centralized Service Branch conducted by Supervisor Betty Hill on May 5, 1983. Thereafter, on March 21, 1984 Respondent filed a petition to revoke said subpoena duces tecum stating that the data sought constituted intramanagement guidance, advice and counsel; that it did not relate to the matter under investigation or in question in the proceeding. General Counsel filed its opposition thereto, and thereafter the Regional Director issued an order referring the matter to the chief Administrative Law Judge for disposition. No disposition having been made, the matter came before the undersigned at the hearing for a filing thereon. The data subpoenaed was submitted by Respondent for an in camera /5/ inspection. The undersigned examined the data, which consisted of notes of a meeting conducted by Betty Hill on May 5, 1983, and noted for the record that no mention was made therein regarding the wearing or non-wearing of jeans by employees. No reference to a dress code or standard was contained in the notes. Since the allegation in the Complaint concerned an alleged unilateral change in a dress code on May 5, 1983, the document was deemed unrelated to the controversy. Accordingly, the undersigned granted the petition to revoke said subpoena duces tecum. /6/ All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed 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 adduced at the hearing, I make the following findings and conclusions: Findings of Fact 1. At all times material herein Respondent has recognized the National Treasury Employees Union as the exclusive representative of all professional and nonprofessional employees of the Internal Revenue District Offices, Regional Offices and National Offices, with specified exclusions. 2. At all times material herein Respondent and the National Treasury Employees Union have been parties to a national collective bargaining agreement covering employees in the aforesaid appropriate unit. 3. At all times material herein, National Treasury Employees Union, Chapter 222, has been the local representative at the Houston, Texas District Office of Respondent for the purposes of collective bargaining and administration of the said collective bargaining agreement, as well as representation of employees in the unit set forth above. 4. Article 39, Section 3A of the said national agreement, which applies to the Respondent's Houston District, provides, in substance, that the employer will give the NTEU National President advance notice of any proposed changes in conditions of employment. Further, that "normally the Employer will provide three weeks notice of such changes and the Union will make any proposals it intends to make before the end of the notice period". Article 39, Section 3B of the said national agreement provides, in substance, that where the Employer proposes to make a change in employment conditions limited to one appointing office (district, region, or headquarters), the notice denoted in Section 3A may be given to the local chapter president or joint council chairperson. 5. The Houston District of Internal Revenue Service was created as a separate district in September, 1981. There are about 1500 employees included therein and they comprise six separate offices. The Briarpark location employs about 700 employees covering classification of revenue agents, revenue officers, office collection people, office auditors, and executive officials. 6. Also located within the Briarpark location is the Centralized Service Branch (CSB) which employs about 80 individuals. This branch, established in November, 1982, offers support to other IRS divisions, primarily examination and collection. It processes reports from a revenue agent based on his examination, as well as input information in the terminal units relating to the taxpayer's tax account. 7. The CSB at Briarpark is located in a restricted area on the main floor of the building. The door to CSB is closed but not locked. There is only one entrance to its offices and one must stop at the desk to obtain permission to enter. Visitors receive special permits to enter. They are required to sign in and out of the area. While CSB employees do not as a rule meet or deal with the public, there are about 6 or 7 teller operation employees in CSB who do deal with the public. Occasionally, CSB employees may give directions to the public within the building. 8. Upon the establishment of the Houston District Arturo Jacobs was named District Director thereof. Michael Dolan was selected as Acting Assistant Director. Jacobs reported to Houston in or about January, 1982. The NTEU Chapter 222 president was Tony Ovalle and John Agee was the Chief NTEU steward. A series of meetings took place among those principals regarding the adoption of a dress code for the Houston District's employees. No such code regarding dress had been in existence for this District prior thereto. 9. In about March, 1982 /7/ District Director Jacobs and Assistant Director Michael Dolan met with Union representatives Tony Ovalle and John Agee. There was some discussion concerning the attire of the employees. All concurred that employees should dress as professionals, but no specified dress code was agreed upon at that time. 10. Ovalle testified that in April he had his first informal meeting with Jacobs regarding a dress code. He asserts that the Director stated he did not like the way employees dressed. Ovalle agreed with Jacobs since some individuals came to work wearing faded jeans, t-shirts and sneakers, and he felt some dress code was needed. The Union president further testified that both men agreed the employees in the Houston District should be polled; that each individual manager would hold a meeting with unit employees and discuss what constituted an appropriate dress code for their particular area. /8/ Based on that information, a dress code would be formulated. The Union president also testified that both management and the Union agreed that all non-contact /9/ employees could continue, as in the past, to wear jeans; that Jacobs wanted male employees, who come in contact with the public, to wear a shirt, tie and coat. Ovalle asserts that later in June it was agreed between them that male employees who come in contact with the public should wear a tie. Further, he testified that as of that date the CSB had not yet been established; /10/ that the non-contract employees at that time were those assigned to the Westheimer (southwest) office involved in taxpayer service, as well as the office collection branch. 11. Assistant Director Michael Dolan testified that he met with Ovalle and Agee /11/ on April 5 at which time the dress code was discussed. According to Dolan, management conveyed to the Union representatives concern about the dress of its employees. Reference was made to a revenue officer type person who ought to wear a tie and shirt when dealing with the business community. Dolan was concerned about people all wearing different apparel in the office branch. He further testified that both the Union and management talked about things they were interested in by way of shirts and ties, and the things they were not interested in by way of jeans. Dolan testified the Union shared the agency's view that proper attire was an area which the District needed to do something about; that blue jeans were mentioned, but the Union official did not register any objections to employees not wearing jeans. He testified the Union did not make a proposal that jeans could be worn by non-public contact employees. /12/ Dolan also stated that public vs. non-public contact never seemed to be a point of dispute at any meeting he attended. /13/ 12. Jacobs testified that management began meeting with the Union representatives in March. A discussion took place about a proposed dress code since employees were wearing jeans and individuals in public contact jobs were not wearing neckties or coats. It was proposed by Jacobs that the Union assist the IRS in improving general appearance. The Union concurred in the effort to improve the professional image by adopting a dress code. 13. At a later meeting in April, according to Jacobs, the parties agreed they did not want a formal dress code in writing which would identify articles of clothing. With respect to jeans being worn, Jacobs testified: "Secondly, we did agree that no jeans would be permissible, and in my opinion in any kind of job, not just public contact jobs . . . " Further testimony of Jacobs reflects that he and Assistant Director Dolan stated at the meeting that jeans would not be permissible and that the Union did not object. He also testified that the Union representative agreed. /14/ The Director also stated that the Union proposed two items: a community tie applicable to special procedures and collection, and that the review staff and revenue agents dispense with wearing a tie-- both of which proposals were not agreed to by management. /15/ 14. An LMR Committee Meeting was held on April 30. The minutes thereof (Respondent Exhibit 2) refers to the draft memorandum (G.C. Exhibit 4) submitted to the participants at that time re the desired professional image. Further, the minutes reflect (last page) that Jacobs asked the Union representatives to assist in ensuring that employees dress appropriately, and that they agreed. The minutes also state that a memorandum to all employees will go out the following week; that managers will begin discussing the topic in group meetings, soliciting employees' support. 15. A managerial staff meeting of the Collection Division was held on May 4. The minutes of the meeting, presided over by Carl Speer, chief of the Collection Division, reflect that the managers were told that a dress code memo would be out in a few days. Further, the managers were requested to meet with their staffs to discuss the memo and invite the Union representatives. The chief stated that the meetings with the staffs should be in the form of a general discussion re the normal business standards of dress. 16. A memorandum dated May 7 was issued by Jacobs to all employees entitled "Professionalism in Official Relationships" (Respondent Exhibit 1). In it he stated, inter alia, as follows: " . . . it is important that we be cognizant of our need to project a professional and business-like appearance. Consequently, I have asked each manager to review with employees the standards of attire appropriate to the work being performed in their areas and in the professional community they serve . . . " Jacobs testified that the dress code was implemented on May 7; that he gave instructions to all the managers to begin having group meetings throughout the district in all functions and all divisions to begin implementing the dress code. /16/ 17. A Collection Division Staff Meeting was held on May 19. The minutes of the meeting (Respondent Exhibit 10) reflected that, at a Division Chief's Conference, the dress code was discussed; that the Division Chief would like feedback at the next staff meeting about the reaction from the staff. /17/ 18. The Examination Division held a staff meeting on June 7. The minutes (Respondent Exhibit 13) reflected that the chief stated that shirt and tie, with coat available, is the attire expected of the employees meeting the public. Also, there was a reminder that blue jeans are inappropriate. 19. In reporting on June 14 to all the Houston District Managers re the all manager conference, the District Director stated that the office attire memorandum was coordinated with NTEU officials and issued to all employees on May 7 under the subject "Professionalism in Official Relationships;" that group meetings by all managers with subordinates to discuss the topic should be on-going. (Respondent Exhibit 3). 20. A staff meeting of the Houston District was held on July 13 at which Jacobs presided. The minutes thereof (Respondent Exhibit 4) reflect that the issue re men wearing ties was posed; that some managers believed having unworn "community" ties in the area was alright, while other managers disagreed. Further, they indicate that a discussion ensured and it was established that the type of position accepted by a person determines whether neckwear is appropriate-- namely, positions which call for public contact call for appropriate neckwear. Male incumbents of such positions should wear neckties in or out of the office. Acceptance of this request, it was declared by management, would certainly not be costly, inconvenient, nor greatly uncomfortable to employees. 21. Group Manager Lawrence Fagen, in a memo to his staff in group 1203 dated July 15, commented that on June 28 the proper business attire was discussed by that group; that the consensus of the meeting led to the determination that the appropriate attire for men is a coat and tie for all field work, with a shirt, tie, slacks and a coat available for office work. Jeans were deemed unprofessional. He stated that employees were expected to comply with this standard starting with the next business day. (Respondent Exhibit 14). 22. Both Ovalle and Agee attended an LMR Committee meeting on July 23. Jacobs and various division chiefs were also present. The minutes thereof (G.C. Exhibit 5) reflect that the Union representative stated that employees were expecting some guideline re a dress code; that managers have different interpretations re proper dress and attire; and that the Union would like clarification of what is expected. Management commented that it planned to refine the unwritten code as specifics arose; that males who occupy public contact positions are expected to wear a dress shirt and tie, and have a coat available. A "community tie" was not what management had in mind. Further, he stated that the unwritten code is still open for refinement. The minutes reflect management's comment that appropriate attire for females was more difficult to define; that it was agreed sundresses, halter tops, see-though blouses are inappropriate-- that pulic contact positions, rather than what an employee plans to do on a particular day, dictate the mode of dress. /18/ 24. The CSB was officially opened on November 15. Two orientation meetings were held by its chief, Carol Eldred, at which time she addressed the employees. Union representative Ovalle was invited to, and did, attend the orientation sessions. No discussion took place re a dress code or attire to be worn by the staff. Later that day there was a second set of meetings held by the unit managers with their respective employees. /19/ Ovalle did not attend these meetings although he acknowledged receiving notification that they would be held on November 15. Testimony by Arlene Kay, Chief of Resource Management Division CSB, indicates that Eldred invited the Union to attend the meetings to be held by managers with their employees. 25. At the individual managers' meetings held with their respective groups of employees on November 15 there was mention made of the proper attire to be worn. The managers stated to the employees that men were to wear shirts and ties; that no jeans were to be worn except when people were doing "dirty" work involving lifting, packing and the like. /20/ 26. Until at least May 5, 1983 some CSB employees wore jeans to work. In some instances management counselled employees against wearing them. 27. On May 5, 1983 group manager Betty Hill conducted a meeting of her employees. CSB employees Nan Dunham and Barbara Kirkley, who attended thereat, wore jeans. Employee Peggy Belcher asked Hill to clarify the policy re jeans since she felt people were being treated differently regarding such attire. Manager Hill stated that CSB employees could not wear jeans. Subsequent thereto both Dunham and Kirkley received counselling memos for wearing jeans. (General Counsel Exhibits 9 and 10). 28. Shortly after the issuance of the counselling memos the two employees spoke to Union steward Stacy McNeill and advised her that they had been written up for wearing jeans. McNeill was also approached by several other employees who complained about the dress code. She attempted to speak with Hill but was unable to do so. McNeill then informed Ovalle of what occurred, and the latter advised the steward to request the minutes of the May 5 meeting held by Hill and ascertain what was said re the dress code. Although she attempted to do so, McNeill was unable to contact the manager. 29. Ovalle then made a written request to management for the minutes of the May 5, 1983 meeting conducted by group manager Hill. Thereafter, Richard P. Wallace, Chief, Classification, Employee and Labor Relations Section, called Ovalle and informed the latter that the minutes were silent regarding a dress code. Wallace also stated the minutes were available to Ovalle. In a letter dated June 20, 1983 addressed to Ovalle the labor relations official wrote as follows: The pre-identified agenda topics for the meeting held May 5, 1983 in Centralized Services Branch (CSB), Terminal Unit by Betty Hill were all work related. In the course of the meeting, an employee queried Ms. Hill regarding wearing jeans to work. Ms. Hill reiterated the dress code policies communicated in the CSB orientation in November, 1982 and subsequently covered in the Labor-Management Relations Committee Meeting held on May 16, 1983. A copy of the meeting minutes is available in the Personnel Branch for your review. 30. Ovalle testified he wanted the meeting minutes because he felt there was a change in the dress code; that, as per his agreement with Jacobs, all non-contact employees could continue wearing jeans as in the past. 31. The notes of the meeting conducted by Betty Hill of CSB employees on May 5, 1983, which were sought by the Union herein thereafter, reflect that no mention was made of the wearing or non-wearing of jeans by any employee. The notes concerned and dealt with: "On Anloc's," "T-SIGNING," and "Request from batching." 32. Although offered an opportunity to review the meeting notes, Ovalle did not do so. No further request was made by the Union for a copy of the notes. 33. Soon after the May 5, 1983 meeting Ovalle raised the problem with Jacobs re employees being written up for wearing jeans. He stated this was contrary to their agreement since they were non-contact employees. Jacobs denied any change and informed the Union official that any employees who wore jeans would be written up by management. The subject was discussed again at a LMR meeting on May 16, 1983, at which time both Ovalle and Jacobs reiterated their positions re wearing of jeans by employees. 34. The parties concede, and the record indicates, that the Union never made any written proposals to management re a dress code; further, that Respondent never gave a written notification to the Union of its implementation date as to the dress code. Conclusions There are two issues for determination herein: (1) whether Respondent implemented a dress code at the CSB, which unilaterally changed conditions of employment, without notifying the Union and affording it an opportunity to bargain thereon-- all in violation of Section 7116(a)(1) and (5) of the Statute; (2) whether Respondent's failure to furnish data requested by the Union was an infringement of Section 7114(b)(4) and thus violative of Section 7116(a)(1), (5) and (8) of the Statute. (1) The condition of employment which was allegedly changed unilaterally involved management's prohibiting the wearing of jeans by all employees. This became applicable to CSB employees upon its establishment on November 15, 1982. General Counsel concedes that the parties agreed that all public contact employees would wear shirts and ties but they could not wear jeans. Contrariwise, Respondent insists that no distinction was ever made, or agreed upon by the parties, with respect to these two groups-- and no employees (except when doing "dirty" work) were allowed to wear jeans as per the agreement with the Union. One of the defenses interposed by Respondent is that the Complaint herein is barred under Section 7118(A) of the Statute. It is contended that the implementation of the dress code at CSB occurred on November 15, 1982; that since the charge was filed on July 5, 1983, it ran afoul of the statutory provision which requires that no Complaint shall issue based on an unfair labor practice occurring more than six months before the charge is filed. General Counsel's Complaint alleges a unilateral change and refusal to bargain dating from May 5, 1983. It is maintained that the Union never knew about the prohibition concerning all employees wearing jeans until this date; that since it never received notification prior thereto, the unfair labor practice occurred when the Union discovered the change, i.e. May 5, 1983. Hence, it is argued, the charge was timely filed. Section 7118(a)(4) of the Statute provides: 7118. Prevention of unfair labor practices (a)(4)(A) Except as provided in subparagraph (B) of this paragraph, 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. (B) If the General Counsel determines that the person filing any charge was prevented from filing the charge during the 6-month period referred to in subparagraph (A) of this paragraph by reason of-- (i) any failure of the agency or labor organization against which the charge is made to perform a duty owed to the person, or (ii) any concealment which prevented discovery of the alleged unfair labor practice during the 6-month period, the General Counsel may issue a complaint based on the charge if the charge was filed during the 6-month period beginning on the day of the discovery by the person of the alleged unfair labor practice. The language of the Statute reveals that, except for circumstances mentioned in 7118(a)(4)(B), conduct occurring more than six months before an unfair labor practice charge is filed cannot serve as a basis for the Complaint. It must be shown that the person filing the charge was prevented by respondent from discovering the conduct within the six month limitation period by concealment or by failing to perform a duty owed to the charged party. /21/ Turning to the case at bar, it is clear that the dress code which prohibited the wearing of jeans by all employees at CSB, including those who do not come in contact with the public, was implemented on November 15, 1982. It was on that date, upon the establishment of CSB, that the unit managers met with their respective employees and described the appropriate dress code which also banned the wearing of jeans by everyone. Record facts established to my satisfaction that Respondent's announcement, via its managers, to employees on November 15, 1982 of what was deemed proper attire constituted the implementation of the dress standard which General Counsel alleges to be a unilateral change in violation of the Statute. While some employees at CSB may have continued to wear jeans, and thus flouted the standard, such disregard may be deemed to impact upon the lack of its enforcement. Nevertheless, the conduct or events which form the basis of the alleged unfair labor practice occurred on said date. Thus, unless it can be determined that the Union was prevented from filing the charge as set forth under 7118(4)(B)(i) or (ii), the charge herein should have been filed no later than May 15, 1983. Unless otherwise so excused, the filing of the charge herein on July 5, 1983 was untimely. General Counsel insists that the Union was not notified of the fact that jeans were forbidden until May, 1983 when several CSB employees were written up for wearing them. It is contended that Respondent failed to notify the Union prior to implementing the dress standard; that it was not until May, 1983 that Ovalle discovered the new policy which forbade all employees to wear jeans; and that the Union never had knowledge of such standard theretofore. Accordingly, General Counsel points to May, 1983 as the date of the alleged refusal to bargain by reason of the implemented dress code which is deemed a unilateral change by Respondent. The undersigned is not persuaded that the Respondent prevented the Union from filing the charge within the required time due to its failure to perform any obligation owed the charging party, or by reason of any concealment. Commencing in March, 1982 there were several meetings which management held with the Union regarding the contemplated dress code. It was known by Ovalle-- apart from the dispute as to what the parties agreed upon-- that management did not want jeans to be worn by anyone. This was stated by both Jacobs and Dolan at separate meetings with the local Union president. Further, at the April 30, 1982 LMR committee meeting, attended by Union representatives Ovalle and Agee, management stated that unit managers would begin to hold meetings and discuss appropriate dress with employees. Such meetings were held and, at least in some instances, employees were told that no jeans would be allowed. It was understood by the parties, and not at issue, that the dress standard would encompass CSB's employees. Upon the establishment and opening of CSB, orientation meetings were held to which Ovalle was invited. While no discussion was held re jeans thereat, the employees were told at the subsequent meetings held by unit managers with their employees on that date that jeans could not be worn. Union president Ovalle attended the orientation sessions. Though invited, he did not see fit to attend the individual unit meetings. The foregoing convinces me that Respondent took no steps to prevent the Union from filing the charge within six months of November 15, 1982. It discussed the intended dress code for months with the Union representative, made known its position as to appropriate attire for employees, and invited them to attend the meetings on the date when the dress standard was announced to CSB employees. The open and continuous discussions with the Union re the proper clothes to be worn belies any intent on the part of management to conceal from the Union the implementation of the dress code. The various meetings with employees to discuss the proper attire were neither secretive nor hidden from the Union. Assuming arguendo that no specific notification was given by Respondent to the Union re the implementation of the dress code at CSB on November 15, 1982, such failure to notify should not toll the six month statute of limitations. A contrary conclusion would render any alleged unilateral change as insulated from 7118(4). Since such a charge involves a lack of notice to the bargaining representative, the six month limitation period would, a fortiori, become inapplicable to any unilateral change by an agency which is alleged as an unfair labor practice. To construe Section 7118(4) as requiring that the charge be filed within six months of the discovery of the alleged unfair labor practice would, in my opinion, do violence to the intent of the Statute. A more reasonable construction, and in accord with the statutory language, warrants the conclusion that a charge must be filed within six months of the conduct or action forming the basis of the unfair labor practice. See Department of Health and Human Services, Social Security Administration, Bureau of Field Operation (New York, N.Y.), 11 FLRA 600. In the case at bar the alleged unfair labor practice occurred on November 15, 1982 when the dress code was implemented at CSB by Respondent. Since the charge was filed on July 5, 1983, it was untimely filed under Section 7118(4) of the Statute with respect to the alleged unilateral change by Respondent of a condition of employment. Thus, no violation may be found in that respect by Respondent. (2) It is expressly provided under 7114(b)(4) of the Statute that, as part of its duty to negotiate in good faith, an agency is obligated to furnish the bargaining representative data-- (A) which is normally maintained by the agency in the regular course of business; (B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining . . . Case law, as developed in the public sector, has tracked the Statute. Thus, where a union seeks information deemed relevant and necessary to fulfill its representational duties, as well as administer a collective bargaining agreement, it must be furnished by an agency. The data must, however, meet the criteria set forth under 7114(b)(4)(A), (B) and (C). Veteran Administration Regional Office, Denver, Colorado, 10 FLRA 453; U.S. Customs Service, Region VII, Los Angeles, California, 10 FLRA 258. In the case at bar the Union requested the minutes of the meeting held by group manager Betty Hill on May 5, 1983. The record reflects that Union president Ovalle sought this data because he believed there was a change in the dress code; that if there was an announcement by Hill that jeans could not be worn by any employees, it ran counter to his agreement with Jacobs in April, 1982; and that it constituted a unilateral change in conditions of employment. However, he was privy to this information by reason of the fact that several employees in Hill's unit who attended the meeting, Nan Dunham and Barbara Kirkley, related to the Union what the manager had said at the meeting re the dress code, i.e. no jeans to be worn by anyone. Moreover, that Hill stated this policy to employees on May 5, 1983 at the meeting was confirmed by management's letter to Ovalle on June 22, 1983. Thus it is evident that the very information sought by the Union, concerning what was stated by Respondent's manager as to wearing jeans, had been imparted to it. Under those circumstances, I am not persuaded-- apart from what the minutes did actually disclose-- that the request would properly be the basis for requiring production of the data sought herein. Since the Union learned that jeans were prohibited at the meeting, which Ovalle deemed to be a change, it obtained the very information which it expected to obtain from the minutes of the meeting. Under these circumstances I am constrained to conclude the agency should not be required to turn over the meeting notes /22/ of manager Hill. In this respect note is taken of the decision rendered by Judge Sternburg in Department of Defense, Department of the Navy, Charleston Naval Shipyard, Case No. 4-CA-1159 OALJ 83-61 (March 4, 1983), affirmed by the Authority without exceptions, May 6, 1983. In the cited case, the union sought notes taken by a managerial employee at an investigation of an employee for an alleged offense. Present at the investigation were both the employee and the union's chief steward. Judge Sternburg concluded that production of the notes was not necessary for intelligent bargaining since the union had, within its possession, the substance of the testimony of the employee who was examined. He found no violation of Section 7114(b)(4) of the Statute. The rationale is applicable to the instant matter. It would serve no purpose to order Respondent to provide the very data which is already within the Union's knowledge and which it sought in the first instance. In view thereof, I would conclude Respondent was under no obligation to furnish the requested information. /23/ It is also significant that the notes of the meeting, which were recorded by Hill, contain no reference to a dress code, nor is any mention made of jeans. They indicate the topics discussed, or to be discussed, concerned "On Anlocs," "T-SIGNING," "Request from batching." Neither do the notes refer to any particular employee or to any infraction by an employee of a rule. In a similar situation the Authority considered a case where the union requested a directive from the Commanding General. The union believed the document contained information pertaining to an employee's entitlement to a union representative and time allowed for an employee to obtain a steward upon being stopped for a random gate search. Such information was not contained in the document. The Authority held that therefore the requested document was not relevant and necessary within 7114(b)(4) of the Statute, and the agency did not violate the Statute when it refused to furnish same. Marine Corps Logistics Base, Barstow, California, 14 FLRA 772. Likewise, in the case at bar, the minutes or notes sought by the Union contain no data which could be of any assistance to it in respect to any discussion or bargaining over the alleged change in the dress code. Further, since they do not bespeak of jeans, the notes are not a "necessary" tool in the Union's representing employees who may be allegedly aggrieved by the dress standard. Accordingly, I am convinced that the said document is neither relevant nor necessary within the meaning of Section 7114(b)(4) and the agency was not obliged to furnish same. By reason of the foregoing, I conclude that Respondent did not violate the Statute when it failed to give the minutes or notes of manager Hill to the Union herein. /24/ Having found that Respondent did not violate the Statute as alleged herein, it is hereby recommended that the Authority issue the following order: ORDER IT IS HEREBY ORDERED, that the complaint in Case No. 6-CA-30311 be, and it hereby is, dismissed in its entirety. WILLIAM NAIMARK Administrative Law Judge Dated: March 19, 1985 Washington, DC --------------- 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 7118(a)(4) provides: Sec. 7118. Prevention of unfair labor practices * * * * (4)(A) Except as provided in subparagraph (B) of this paragraph, 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. (B) If the General Counsel determines that the person filing any charge was prevented from filing the charge during the 6-month period referred to in subparagraph (A) of this paragraph by reason of-- (i) any failure of the agency or labor organization against which the charge is made to perform a duty owed to the person, or (ii) any concealment which prevented discovery of the alleged unfair labor practice during the 6-month period, the General Counsel may issue a complaint based on the charge if the charge was filed during the 6-month period beginning on the day of the discovery by the person of the alleged unfair labor practice. /3/ Subsequent to the hearing Respondent filed with the undersigned a motion to correct the transcript in certain respects. No objection having been interposed, and it appearing that the corrections are proper, the motion is granted. /4/ At the hearing General Counsel moved to amend paragraphs 6, 8 and 9 of the Complaint. Respondent objected to the amendment of paragraph 8 which included the phrase "without providing the Union notice", which allegation concerned the change made by Respondent. Although Respondent objected, it offered no convincing support for its being prejudiced thereby and the motion was granted. Paragraph 6 was amended to change the alleged bargaining agreement from "multi-district" to "national" in scope. Paragraph 9 was amended to include (e) and (f) by alleging that, since May 6, 1983, Respondent has refused to furnish the requested information, and that Respondent has, since May 6, 1983, failed to comply with 5 U.S.C. 7114(b)(4) of the Statute. Respondent moved to amend its Answer to admit paragraphs 6 and 7 of the Complaint, to deny paragraphs 8 and all of 9. Said motion was also granted. (G.C. Exhibit 2 contains the changes and additions to the Complaint as allowed.) /5/ The data is herewith forwarded to the Authority under separate cover along with the transcript and exhibits herein. /6/ The data subpoenaed is the same as sought by the Union from Respondent in May, 1983. It forms the basis for the agency's alleged failure to furnish same as required by 7114(b)(4) of the Statute. A distinction may be made in respect, however, to the origin of the request for the same data. Whereas the Union sought the information in May, 1983 in connection with its representational duties, the data sought by subpoena was for its production at the trial to support General Counsel's case. Thus a basis for granting the petition to revoke might not support an agency's refusal to furnish the same information requested by the Union before the unfair labor practice charge is filed. /7/ Unless otherwise indicated, all dates hereinafter mentioned occur in 1982. /8/ G.C. Exhibit 4 is a draft of a memo addressed from Jacobs to all employees entitled "Professionalism in Official Relationships." It recites, inter alia, that Jacobs had asked each manager to review with employees the standards of attire appropriate to the work being performed in their areas and the professional community served. Ovalle testified he received this memo sometime between April and June, 1982. /9/ This term refers to employees at the IRS District who would not, as a rule, come in contact with the public during their work hours. The parties do not agree as to whether the CSB employees are to be deemed "non-contact" employees. /10/ It is not disputed that whatever dress code might be adopted, it would apply to the CSB when established. /11/ Chief steward Agee did not testify at the hearing. /12/ Minutes of a staff meeting held on April 6, 1982 (Respondent's Exhibit 5) refer to the "briefing" session held on April 5 with Ovalle. They recite that the Union representative brought up the topic of dress code at the session and appeared supportive of management's efforts to improve the image of the Service. /13/ During his testimony Dolan referred to several meetings held with the Union. His use of the term "we said" or "we told the Union," in addition, does not make it clear that these comments re jeans and contact versus non-contact employees were made at the April 5 meeting. /14/ On cross-examination Jacobs testified that the Union did not say they agreed to no jeans; that there was no objection from the Union or no counterproposal-- just "expression of general agreement." /15/ The parties are in substantial dispute as to whether Ovalle and Jacobs agreed that the prohibition against wearing jeans should apply to all employees. The Union official testified he finally agreed that all employees who have contact with the public would not wear jeans. Respondent's Director testified there was an agreement that all employees (contact and non-public contact) were to be prohibited from wearing jeans. A resolution as to this issue, i.e. the agreement reached, will be discussed under "conclusions," infra. /16/ Carl Speer testified that the Union was invited to attend meetings with managers; that meetings be arranged so that Union steward could attend each one. /17/ A similar meeting was held with the Collection Division staff on June 1, and the same comment made re feedback from the staff. /18/ Jacobs testified that, at this point in time, perhaps everything had not been clarified. /19/ Several of Respondent's witnesses testified that Union steward Benny Hicks was present at a unit meeting conducted by manager Claudia Guzman on November 15. Hicks testified he was not present at any such unit meeting; that he was conducting an audit at a taxpayer's place of business in downtown Houston during the entire day. While the different testimonies are conflicting, the undersigned does not believe it necessary to resolve credibility in this instance in view of the ultimate determination and conclusions re the sufficiency of notification by Respondent to the Union concerning the dress code implementation. /20/ Testimonies were adduced as to particular meetings that were held on such date with employees by managers Betty Hill (CSB Resource Management Division), Doris Countryman (CSB unit manager), and Claudia Guzman (CSB support unit). /21/ See Home Committee Report (H.R. 11280)-- H.R. Rep. No. 95-1403, 95th Cong., 2d Sess., at 52-53(1978). /22/ While the parties have referred to Hill's record as "minutes," it should be observed that they are labeled "meeting notes." Despite the fact that no evidence appears as to whether they were prepared in advance of the meeting, or how recorded, they have been treated herein as having been made in the regular course of business as required under 7114(b)(4)(A) of the Statute. /23/ This particular issue between the parties provokes comment that, if not so irresolute, the parties could have avoided this litigation. Firstly, the Respondent had little to suffer by disclosing the notes of the meeting in view of the fact that they contain no information of any significance to the Union. Neither were any privileged or secretive details contained therein. Further, the Union could have availed itself of the opportunity, offered by Respondent, to review the notes. In that instance, it could have been assured that no mention was made of the dress code, or jeans, and thus, foregone insisting upon its production. Less adamant behavior by either party, less controversy. /24/ An issue may well be posed for determination as a result of the fact that management made the data available to the Union, and the latter failed or refused to examine or review same. It raises the query as to whether a union, under such circumstances, may properly fault an agency for not furnishing the document to the bargaining agent. Had the Union looked at the minutes, management may never have been called upon to provide a copy to it. In view of the conclusions already reached, the undersigned finds it unnecessary to resolve such issue.