22:0245(24)CA - IRS Philadelphia District Office and NTEU Chapter 22 -- 1986 FLRAdec CA
[ v22 p245 ]
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) of the Statute. I do not agree. The significant date for the purpose of calculating the 6 month limitation period, is March 20, 1985. this is the date when it is alleged the unfair labor practice occurred, i.e. the refusal to execute the AWS agreement for ACS. The Complaint is predicated thereon. Since the charge was filed within one month thereafter, I conclude it was timely filed under 7118(a)(4)(A). (20) In view of the findings and conclusions reached by the undersigned and his recommendations, it is not deemed necessary to pass upon Respondent's contention that no agreement reached could be binding until approved by its district director.