21:0512(69)CA - Bureau of Gov't Financial Operations HQ and NTEU And NTEU, Chapter 202 -- 1986 FLRAdec CA



[ v21 p512 ]
21:0512(69)CA
The decision of the Authority follows:


 21 FLRA No. 69
 
 BUREAU OF GOVERNMENT FINANCIAL 
 OPERATIONS, HEADQUARTERS
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION 
 AND NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 202
 Charging Party
 
                                            Case No. 3-CA-2646
                                             (15 FLRA 423)
 
                      SUPPLEMENTAL DECISION AND ORDER
 
    On August 1, 1984, the Authority issued its Supplemental Decision and
 Order in the above-entitled proceeding /1/ in which it found that the
 Respondent was not obligated under section 7114(a)(2)(A) of the Federal
 Service Labor-Management Relations Statute /2/ (the Statute) to afford
 an exclusive representative of its employees notice of and the
 opportunity to be present at an interview of a unit employee in
 preparation for a hearing before the Merit Systems Protection Board
 (MSPB) and therefore had not violated section 7116(a)(1) and (8) of the
 Statute.  /3/ Bureau of Government Financial Operations, Headquarters,
 15 FLRA 423 (1984).  Thereafter, on October 11, 1985, the U.S. Court of
 Appeals for the District of Columbia Circuit set aside the Authority's
 Decision and held, contrary to the Authority, that the subject matter of
 the interview concerned a grievance as that term is used in section
 7114(a)(2)(A) of the Statute, that the interview constituted a formal
 discussion within the meaning of section 7114(a)(2)(A), and that the
 Respondent's failure to notify the exclusive representative and provide
 it with an opportunity to be present at the interview therefore was
 contrary to the requirements of section 7114(a)(2)(A) and thus in
 violation of section 7116(a)(1) and (8) of the Statute.  National
 Treasury Employees Union v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985).
 
    The Authority accepts the court's opinion as the law of the case and,
 consistent with that opinion, shall issue the following remedial order:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the Bureau of Government Financial Operations,
 Headquarters, shall:
 
    1.  Cease and desist from:
 
    (a) Conducting formal discussions with employees in the bargaining
 unit exclusively represented by the National Treasury Employees Union,
 concerning grievances or any personnel policy or practices or other
 general conditions of employment, without affording the NTEU prior
 notice of, and the opportunity to be represented at, such formal
 discussions.
 
    (b) In any like or related manner interfering with, restraining or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Notify the National Treasury Employees Union of, and afford it
 the opportunity to be represented at, formal discussions with members of
 the bargaining unit exclusively represented by the NTEU concerning
 grievances or any personnel policy or practices or other general
 conditions of employment.
 
    (b) Post at its facility where employees in the bargaining unit are
 located copies of the attached Notice on forms to be furnished by the
 Federal Labor Relations Authority.  Upon receipt of such forms, they
 shall be signed by an appropriate official of the Respondent, and shall
 be posted and maintained for 60 consecutive days thereafter, in
 conspicuous places where notices to employees are customarily posted.
 Reasonable steps shall be taken to ensure that such Notices are not
 altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region III, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    Issued, Washington, D.C., April 28, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                                 FOOTNOTES$ -----
 
    (1) The Authority issued its original decision on this matter on
 September 15, 1983, in which it found that the Respondent, Bureau of
 Government Financial Operations, Headquarters, had not violated section
 7116(a)(1) and (8) of the Federal Service Labor-Management Relations
 Statute and ordered that the complaint be dismissed, Bureau of
 Government Financial Operations, Headquarters, 13 FLRA 27 (1983).
 Subsequent thereto, the Union petitioned for review of the Authority's
 decision in the U.S. Court of Appeals for the District of Columbia
 Circuit (No. 83-2180).  Thereafter, the Authority filed and the court
 granted a motion to remand in order to allow the Authority an
 opportunity to address with more particularity in a supplemental
 decision the application of Internal Revenue Service and Brookhaven
 Service Center, 9 FLRA 930 (1982), to the instant case.
 
    (2) Section 7114(a)(2)(A) provides:
 
          Section 7114.  Representation rights and duties
 
                       .   .   .   .   .   .   .
 
 
          (a)(2) An exclusive representative of an appropriate unit in an
       agency shall be given the opportunity to be represented at --
 
          (A) any formal discussion between one or more representatives
       of the agency and one or more employees in the unit or their
       representatives concerning any grievance or any personnel policy
       or practices or other general conditions of employment(.)
 
    (3) Section 7116(a)(1) and (8) provides:
 
          Section 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;
 
                       .   .   .   .   .   .   .
 
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter(.)
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT conduct formal discussions with employees in the
 bargaining unit exclusively represented by the National Treasury
 Employees Union, concerning grievances or any personnel policy or
 practices or other general conditions of employment, without affording
 the NTEU prior notice of, and the opportunity to be represented at, such
 formal discussions.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL notify the National Treasury Employees Union of, and afford
 it the opportunity to be represented at, formal discussions with members
 of the bargaining unit exclusively represented by the NTEU concerning
 grievances or any personnel policy or practices or other general
 conditions of employment.
                                       (Agency or Activity)
 
    Dated:  . . .  By:  (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Federal Labor Relations Authority, Region III, whose address
 is:  1111 18th Street, N.W., Room 700, P.O. Box 33758, Washington, D.C.
 20033-0758 and whose telephone n