22:0245(24)CA - IRS Philadelphia District Office and NTEU Chapter 22 -- 1986 FLRAdec CA



[ v22 p245 ]
22:0245(24)CA
The decision of the Authority follows:


 22 FLRA No. 24
 
 INTERNAL REVENUE SERVICE 
 PHILADELPHIA DISTRICT OFFICE
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES 
 UNION, CHAPTER 22
 Charging Party
 
                                            Case NO. 2-CA-50267
 
                            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
 filed exceptions to the Judge's Decision.
 
    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.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case NO. 2-CA-50267 be, and it
 hereby is, dismissed in its entirety.
 
    Issued, Washington, D.C. June 25, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case NO.: 2-CA-50267
 
 INTERNAL REVENUE SERVICE PHILADELPHIA DISTRICT OFFICE
    Respondent
 
                                    and
 
 NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 22
    Charging Party
 
 
    David J. Markman, Esquire
    For the Respondent
 
    Barbara S. Liggett, Esquire
    For the General Counsel
 
    Before:  WILLIAM MAIMARK
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    The hearing in the above-entitled case was held before the
 undersigned on August 5, 1985 at Philadelphia, Pennsylvania.  A
 Complaint and Notice of Hearing was issued on June 28, 1985 by the
 Regional Director for the Federal Labor Relations Authority, Region II,
 New York, N.Y.
 
    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 First Amended Charge filed on June 17, 1985 by National
 Treasury Employees Union, Chapter 22 (herein called the Union) against
 Internal Revenue Service, Philadelphia District Office (herein called
 Respondent).
 
    The Complaint alleged, in substance, that the parties negotiated and
 reached an agreement regarding alternative work schedules for
 Respondent's Data Services Staff and its Automatic Collection System
 Branch;  that Respondent refused to execute such agreements, all of
 which constituted a violation of Section 7116(a)(1) and (5) of the
 Statute.
 
    Respondent's Answer dated July 19, 1985, denied the aforesaid
 allegations /1/ as well as the commission of any unfair labor practices.
 
    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 the Union has acted as the
 representative of the National Treasury Employees Union /2/ for the
 purposes of collective bargaining for Respondent's employees, and
 Respondent has recognized the Union as the bargaining representative of
 Respondent's employees.
 
    2.  A National Agreement between National Treasury Employees Union
 and Internal Revenue Service became effective by its terms on January
 26, 1981 and remained in effect for four years thereafter.
 
    3.  Both NTEU and IRS executed a Memorandum of Understanding in
 November 1982 which established the framework within which local offices
 and chapters may negotiate agreements re alternative work schedules.
 
    4.  Pursuant to the aforesaid Memorandum the Union herein and
 Respondent executed an agreement on February 25, 1984 providing for
 alternative work schedules (hereinafter called AWS) for bargaining unit
 employees.  Provision is made therein for flexitour /3/ with credit
 hours /4/ and a 5/4-9 /5/ schedule of work.  The said agreement also
 provides as follows in Section 7(b) thereof:
 
          This Agreement does not extend to organizational segments
       implemented after the effective date of this Agreement.  /6/ AWS
       for organization segments established after the effective date of
       this Agreement will be determined at the time of its
       establishment.  (underscoring supplied).
 
    In addition, the procedures set forth in Article 39, Section 3(B) of
 the National Agreement will apply re notice to the Union when management
 proposes changes in employment conditions.
 
    5. Subsequent to the AWS agreement pertaining to the District, two
 new sections were created by Respondent:  the Data Services Staff,
 herein called DSS, and the Automated Collection Systems Branch, herein
 called ACS.  The DSS section takes care of programming for computer
 operations.  The ACS branch was a new system involving the use of
 computers to contact taxpayers and aid in collecting taxes from smaller
 payers.  About 20 individuals (inclusive of managerial staff) comprised
 DSS, while about 45 are employed in ACS.
 
    6.  In a memorandum dated March 29, 1984 Florence Warner,
 Respondent's Chief of Personnel, advised William H. Walton, Union
 president, that the DSS had been established;  that while the AWS
 agreement requires that new segments have AWS schedules negotiated as
 they are established, Respondent does not believe computer operators
 should participate in AWS.  This latter position was based on the fact
 that these operators will be working set rotating shifts incompatible
 with either staggered or credit hours.  Further, the use of credit hours
 would pose a problem since only six employees covered 24 hours most of
 the week.
 
    7.  Walton replied to the aforesaid memo by a letter dated April 16,
 1984 wherein it was stated that the Union wished to negotiate the
 substance, impact and implementation of AWS for DSS computer operators.
 The Union also requested a briefing in order to draft proposals.
 
    8.  Following a briefing between the parties, Respondent sent a
 memorandum dated May 4, 1984 to Walton requesting that specific
 proposals of the Union re AWS for DSS be submitted by C.O.B. May 9,
 1984.
 
    9.  By memo dated May 9, 1984 the Union submitted to Respondent its
 proposals re AWS for the DSS that (a) Computer operators have a
 compressed schedule of 10-1/2 hours per day for eight days of the
 biweekly period to complete the basic work requirement of 80 hours;  (b)
 Computer Operators be allowed to exchange shifts and/or days off.
 
    10.  Later in that month, Union President Walton met with John
 Ferraro, Chief of DSS, Mark Hart, a manager in that section, and Judy
 Jones, personnel specialist.  A briefing was held re AWS for the DSS at
 which time management expressed concern about the computer operators who
 worked three shifts, and how their schedules would work out.
 
    11.  Several short meetings were held in July 1984 regarding the
 implementation of AWS for DSS, and these were attended by the same
 individuals, i.e. Walton, Ferraro, Hart and Jones.  Testimony by Walton
 /7/ reflects that while management continued to express concerns re the
 adaptability of AWS for computer operators, he finally drafted a written
 instrument covering these concerns.  Walton testified that the agreement
 he drafted (G.C. 9) was written to "go along with what me and the
 managers came up with;" that it was his "feeling" that the parties came
 to an agreement in July with regard to AWS for the data services
 computer operators.  Further, Walton testified Judy Jones was to have
 the agreement typed up and send him a copy.  However, she left the
 agency around July or August and he never received a typewritten or
 signed copy.
 
    12.  The drafted agreement is entitled "Proposed Agreement Regarding
 Alternative Work Schedules/Staggered Work Hours for the Data Services
 Staff." It provides, in substance, that bargaining unit employees will
 be provided the opportunity to work flexitour with credit hours or a
 5/4-9 schedule, except those required to work rotating shifts.  Further,
 that computer operators on rotating shifts will be allowed to work a 10
 hour day, 4 day work week if all agree to a set schedule and the number
 of operators does not go below six.  Provision is also made, subject to
 approval, for exchange of shifts between employees.
 
    13.  About a month later Walton asked William Wagner, Chief of Labor
 -- Management Relations, about the agreement since he had not received a
 typewritten copy.  Wagner told the Union official to speak with Sandy
 Coffman, a labor relations specialist for Respondent.  Record facts
 reflect that Walton met with Coffman and asked her about the agreement;
 that Coffman stated she was not sure of its status but would check with
 management and get back to him.  Walton testified that he later met with
 Coffman again who "sort of indicated everything seemed to be okay." /8/
 Further, that Walton assumed Coffman must have obtained approval from
 management as to AWS for data services.
 
    14.  Testimony adduced from Coffman reflects that she reviewed the
 files re AWS for DSS;  that notes therein concering the meeting in July
 1984 indicated management would get proposals along with examples of how
 the 4-10 schedule would work and then the parties would get back
 together;  that no such schedules were submitted to management, and the
 proposals were deemed incomplete.  /9/
 
    15.  Walton's testimony reflects that in several discussions with
 Wagner the latter stated that management was working on the agreement;
 that it would be signed and sent to him for signature.  Wagner testified
 that he assigned the Union's porposals to Coffman;  that he assumed that
 everything had been worked out, and, in fact, two bargaining unit people
 were already under AWS.  Record facts also show that in April, 1985
 Wagner met with Walton;  that the management official stated he thought
 everyone was happy, and he assumed there was an informal resolution of
 the problem.
 
    16.  In December, 1983 NTEU and IRS negotiated an agreement covering
 ACS implementation at districts throughout IRS (G.C. Exhibit 10).
 Section 9(a) thereof provides that bargaining over matters relating to
 AWS would be conducted at the local level, but any agreements re AWS
 must be consistent with the AWS agreement negotiated at the national
 level.  /10/
 
    17.  By memo dated December 5, 1983 R. K. Burgess, Chief Personnel
 Branch of Respondent advised Raymond Wolownik, President of the Union
 herein, that AWS coverage for ACS employees would be handled under
 Section 7-B of the locally negotiated AWS agreement.  /11/
 
    18.  In a letter dated March 23, 1984 Walton advised Respondent's
 District Director, Charles E. Roddy, that the Union desired to negotiate
 the implementation of ACS.  Included therein were ten proposals by the
 Union concerning employment conditions for ACS employees.  Proposal NO.
 6 stated:
 
          "That the hours of work remain generally as they are currently
       in the Collective Office Branch." /12/
 
    19.  Respondent replied to the Union in a memo dated April 13, 1984
 in which management set forth eight proposals re ACS negotiations along
 with Interim ACS Office Rules.  Item number 6 proposed that "AWS for ACS
 will be negotiated beginning as soon as possible in October, 1984 to
 provide experience under the ACS system."
 
    20.  Prior to commencement of negotiations re ACS implementation,
 Respondent's negotiating teams, consisting of Michael Harkins, Chief of
 Special Procedures, William Cressman, formen Chief of ACS, and Judy
 Jones, met with Jay West, Chief of Collection Division.  Record facts
 disclose that West told the team that he and the District Director made
 the final decision re any working rules which may by adopted.  Further,
 that the group's authority was limited to "hammering" out tentative
 agreements which must then be discussed with the Division Chief.
 
    21.  The first negotiation session for ACS /13/ was held on May 8,
 1984.  The Union was represented by Al Jones, Vice-President of the
 Union, Francis Greene, Secretary of the local and steward for the Union,
 and Raymond Wolownik.  Management requested, and the Union agreed, that
 the parties hold off on AWS negotiations for 60-90 days.  Subsequent to
 the meeting the Union submitted 24 proposals, although the list did not
 include items concerning AWS for the employees in ACS.
 
    22.  Sessions continued thereafter, and the record reflects that
 meetings were held on May 15 and 30, 1984, as well as June 12 and July
 19, 1984 and August 29, 1984.  Management's representatives Harkins,
 Cressman and Raymond Pfeiffer /14/ testified, and I find, that at each
 meeting in June and July, 1984 it was stated by either Harkins or
 another official that the alternative work schedule (AWS) for the ACS
 unit would be part of the entire package or negotiations for that unit.
 No discussion or agreement was made that a separate agreement would be
 executed for the AWS, independent of one for the work rules which would
 govern ACS.  /15/ I also find that at various meetings representatives
 of management mentioned that any agreement reached would not be final
 and binding until signed and approved by the District Director.  While
 Union agent Greene testified no such limitation was stated by
 management, I credit Harkins and Cressman that the Union agents were
 told that any agreement reached has to be approved by the Director.
 
    23.  The parties continued negotiations for ACS and had resolved all
 issues except three by January, 1985.  With respect to AWS for the new
 unit the only material dispute concerned starting time.  The Union
 decided to forgo its demand for 7:00 a.m. for the start of work, and the
 parties agreed to an 8:15 a.m. starting time.  Except for minor items as
 correct spelling and the like, the parties agreed on the alternative
 work schedule for ACS.  The three issues remaining, and which were
 unresolved, concerned food and drinks at the work place, an electronic
 bulletin board for employee notices, and radios for employees.  In
 January, 1985 the parties submitted the unresolved issues to the Federal
 Services Impasse Panel.  /16/
 
    24.  Record facts disclose that some items, which were agreed to by
 the parties concerning the ACS unit, were implemented.  Thus, a work
 rule was implemented excluding permanent employees from being required
 to sign in and out;  it was agreed a cork board would be provided and
 notices must be placed therein and nothing would be hung or taped on
 walls:  that nobody would turn machines on or off unless authorized.
 /17/
 
    25.  On February 21, 1985 the Union received a proposed agreement for
 AWS in ACS.  In March, Sandra Coffman told Greene that the AWS
 provisions were agreed to, but no commitment was made as to date of
 implementation.  She agreed to bring the AWS items with her to a meeting
 scheduled for March 20.  The proposed agreement (G.C. Exhibit 17) set
 forth the alternative work schedule provisions but ommitted the date for
 implementation thereof.  It also left blank the date when it would
 become effective.  It was also unsigned and not initialed.
 
    26.  On March 20, 1985 Greene and two other Union representatives met
 with Wagner as scheduled.  The latter mentioned the three unresolved
 issues as to ACS.  The Union did not agree to the language concerning
 those items, and it suggested these issues be tabled and that the
 parties should sign an agreement re AWS.  Wagner stated that there would
 be no AWS agreement in view of the unresolved ACS issues.  The remaining
 three issues in respect to working rules at ACS were never resolved, and
 the parties continued to negotiate thereon.
 
                                Conclusion
 
    The key issues for determination herein are twofold:  (1) Whether
 Respondent violated Section 7116(a)(1) & (5) of the Statute by failing
 and refusing to execute an agreement re alternative work schedules (AWS)
 for the Data Services Staff;  (2) Whether Respondent violated Section
 7116(a)(1) & (5) of the Statute by failing and refusing to execute an
 agreement re AWS for the Automated Collection System Branch (ACS).
 
    Under Section 7114(b)(5) of the Statute an obligation is imposed upon
 an agency to execute an agreement reached with the exclusive
 representative.  Thus, the statutory provision in that regard states as
 follows:
 
          "(b) The duty of an agency and an exclusive representative to
       negotiate in good faith under subsection (a) of this Section shall
       include the obligation --
 
          "(5) if agreement is reached, to execute on the request of any
       party to the negotiation of a written document embodying the
       agreed terms, and to take such steps as are necessary to implement
       such agreement."
 
    It becomes clear from the foregoing statutory language that an
 imposition is placed upon a party to sign a document provided that an
 agreement is reached after negotiations thereon.  The central dispute,
 which is at the heart of the issues herein, revolves around a
 determination as to whether the Union and Respondent actually negotiated
 an agreement concerning alternative work schedules for the Data Services
 Staff and the Automated Collection System Branch.  If such agreements
 were reached with respect to the units herein, and were deemed to be
 operative agreements to be executed, the agency may be faulted for not
 signing same in such instances.  /18/ See and compare American
 Federation of Government Employees, AFL-CIO, Local 3732 and Department
 of Transportation, Maritime Administration, U.S. Merchant Marine
 Academy, Kings Point, N.Y., 16 FLRA NO. 50.
 
    (1) General Counsel contends that, with respect to the Data Services
 Staff, the parties reached an agreement as to the alternative work
 schedules which was embodied in a written instrument and submitted for
 typing and execution.  It is argued that for the first time, in April,
 1985, Respondent raised the point that no agreement seemed necessary and
 thus none was needed.  Further, that no disagreement with the terms of
 the AWS agreement were raised theretofore by Respondent, and management
 was only attempting to escape its obligation to execute the instrument.
 
    While no basis may have existed for Wagner's conclusion in April,
 1985 that he believed the AWS issue for Data Services had been resolved
 to Wagner's satisfaction, I am not persuaded that, in fact, a meeting of
 the minds took place in respect to this work condition.  Record facts
 establish that, at the outset of negotiations in May, 1984, Respondent
 manifested concern re the applicability of AWS for computer operators.
 Management continued to express misgivings about the computer operators
 utilizing the alternative work schedules.  Since they worked three
 shifts, it was questioned whether such schedules were a feasible
 arrangement for these employees.
 
    It is true that the Union drafted a proposed agreement re AWS for the
 Data Services Staff which made provision for computer operators on
 rotating shifts to work a specified number of hours.  Moreover, Walton
 testified it was his "feeling" that the parties came to an agreement in
 July, 1984 re AWS for this unit.  However, I am not convinced that there
 was an express agreement or understanding in this regard in view of the
 doubts declared by Respondent as to the coverage of computer operators.
 At most it appears to the undersigned there was a misunderstanding
 concerning the sentiment expressed by Coffman that all "seemed to be
 okay." It may be argued that such declaration signified the parties had
 reached agreement re AWS for this group.  However, record facts disclose
 that, apart from the fact that the proposed terms were not initialed,
 the parties had not signified to each other that the dispute regarding
 the computer operators had been resolved.  Thus, I am constrained to
 conclude that no final agreement had been reached re the alternative
 work schedules for the Data Services Staff;  that Respondent's refusal
 or failure to sign an agreement embodying such schedules was not
 violative of Section 7116(a)(1) and (5) of the Statute.
 
    (2) It is asserted by the General Counsel that the parties reached an
 agreement in March, 1985 concerning AWS for the ACS section;  that the
 failure or refusal by Respondent to execute such agreement constituted
 an unfair labor practice.  The essential terms re the alternative work
 schedule, as applicable to the ACS unit, were allegedly agreed upon by
 January, 1985 and no major modifications were necessary.  Respondent
 challenges the contention that it was required to sign the AWS agreement
 even if it be conceded the the parties agreed to these schedules for the
 ACS branch.  /19/ The principal argument advanced by Respondent is that
 negotiations for the ACS unit were meant to be a complete package;  that
 the alternative work schedules for that unit were a part of the working
 conditions negotiated for ACS;  and that the two were not separable or
 to be bargained separately.
 
    It is true that by February, 1985 the parties had agreed to the
 alternative work schedules for ACS employees.  While most of the other
 terms for this unit had been resolved, there were three main issues
 which had become the "bone of contention" between the Union and
 management:  food and drink at the work place, electronic bulletin
 boards for employee notices, and radios for employees.  These matters,
 although submitted to the Impasses Panel and then withdrawn, were never
 resolved.  Thus, in March, 1985 Negotiations for the ACS Branch had not
 been concluded, and a complete agreement was never reached covering all
 the terms and conditions for that unit.  Moreover, management did state
 at the various bargaining sessions in 1984 that AWS would be part and
 parcel of an agreement embracing other terms applicable to ACS.  There
 was no mutual understanding or written confirmation upholding the
 Union's view that an AWS agreement was to be a separate one and
 independent of other negotiable conditions for these employees.  I am
 satisfied that alternative work schedules were part of negotiations for
 the entire unit;  that management so declared to the union on various
 occasions during negotiations;  and that Respondent indicated to the
 Union representatives that no separate agreement would be made re
 alternative work schedules for ACS.  Accordingly, I conclude that
 Respondent did not breach the duty imposed upon it under 7114(b)(5) of
 the Statute by failing or refusing to sign the agreement embodying
 alternative work schedules for the Automated Collective System unit.
 Accordingly, I also conclude Respondent did not violate Section
 7116(a)(1) and (5) of the Statute.  /20/
 
    Having concluded Respondent did not violate the Statute as far as, it
 is recommended that the Authority adopt the following Order:
 
                                   ORDER
 
    It is hereby ordered that the Complaint in Case NO. 2-CA-50267 be,
 and the same hereby is, dismissed.
 
                                       /s/ WILLIAM NAIMARK
                                       Administrative Law Judge
 
    "Dated:  February 10, 1986
    Washington, D.C.
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The Answer admits that from July 1984 through March 1985 the
 parties negotiated regarding alternative work schedules for unit
 employees in the Automated Collection System Branch.
 
    (2) National Treasury Employees Union is the exclusive representative
 of a consolidated nationwide unit of certain employees of Internal
 Revenue Service, including professional and non -- professional
 employees who are employed in the District, Region and National Offices.
  No challenge is made to the appropriateness of the unit.
 
    (3) Flexitour denotes a flexible schedule which an employee may
 select but must adhere to until an opportunity for change arises.
 
    (4) Credit hours means any hours worked under the work schedule in
 excess of an employee's work requirement.
 
    (5) Under this schedule employees may work eight (8) nine and
 one-half (9-1/2) hour tours and one (1) eight and one-half (8-1/2) hour
 tour with one (1) non-work day within a pay period of ten (10) days.
 Starting time is 8:00 a.m.
 
    (6) Effective date of this agreement is April 15, 1983.
 
    (7) Neither Ferraro, Hart, nor Judy Jones testified at the hearing.
 
    (8) Coffman denies meeting with Walton or discussing the agreement
 with him.  I credit Walton with respect to his having met with Coffman
 and the substance of their conversations.
 
    (9) The record reflects that some proposed schedules were submitted
 by both parties;  that the computer operators had also given management
 a schedule for certain shiftwork;  that the parties continued to discuss
 working out schedules for the computer operators regarding AWS in the
 data services section.
 
    (10) The Agreement for ACS also provided that issues re restrictions
 on food and drink in work areas, office space and furniture placements,
 rest/break areas and facilities, would be negotiated locally.
 
    (11) This refers to G. C. Exhibit 4.
 
    (12) The employees threat were on automated work schedule (AWS).
 
    (13) ACS became operational in Philadelphia on about May 14, 1984.
 
    (14) Although not in attendance on May 8, Pfeiffer was present at the
 meetings held thereafter in May, as well as June 12 and July 19.
 
    (15) Union witnesses Greene and Al Jones testified, in contradiction,
 that no mention was made of the "package" deal at the 1984 sessions.
 Greene insists it was not mentioned until March 20, 1985 when Wagner
 mentioned that there could be no AWS agreement separate and apart from
 an agreement for the ACS unit.  The undersigned is persuaded that
 management did previously declare that a total agreement must be
 negotiated, inclusive of an arrangement for the alternative work
 schedule.  Weight is attached to the fact that both Harkins and Pfeiffer
 made notes of meetings confirming that the Union was apprised of the
 connection between AWS and other terms applicable to ACS.  Moreover, the
 record reflects no discussion or consent to consider them separate
 agreements.  Although it is true that later in February, 1985 management
 submitted a "proposed agreement" for AWS in ACS, it was never signed and
 no date of implementation was specified.  Moreover, the subsequent
 implementation of a few work rules at ACS is not necessarily supportive
 of the Union's contention in this regard.
 
    (16) The parties subsequently agreed to continue negotiations on
 these issues and the submission to the Impasses Panel was withdrawn.
 
    (17) This was not deemed to be a rule about which the parties had to
 negotiate or change.  The parties understood that no employee should
 tamper with equipment.
 
    (18) In the case of the ACS section, the collateral issue is posed as
 to whether any agreement reached re alternative work schedules, if it be
 part of the overall package for ACS, should have been executed
 separately by Respondent.
 
    (19) Respondent also raises an issue of timeliness in respect to
 filing the charge concerning the failure to negotiate in good faith and
 execute the AWS agreement for the ACS Branch.  It is urged that, if an
 unfair labor practice occurred, it took place in March, 1984 and thus
 the occurrence was more than 6 months before the charge was untimely
 filed on April 19, 1985.  Accordingly, Respondent argues, said charge
 was untimely filed under Section 7118(a)(4)(A