[ 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) 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.