31:0832(59)CA - Treasury, IRS, Washington, DC and IRS, Indianapolis, Indiana District Office and NTEU and NTEU Chapter 49 -- 1988 FLRAdec CA



[ v31 p832 ]
31:0832(59)CA
The decision of the Authority follows:


31 FLRA No. 59

DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE, WASHINGTON, D.C.
AND INTERNAL REVENUE SERVICE
INDIANAPOLIS, INDIANA DISTRICT OFFICE

                   Respondent

         and

NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 49

                   Charging Party

Case No. 5-CA-70039

DECISION AND ORDER

I. Statement of the Case

The unfair labor practice complaint in this case alleged that the Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Indianapolis, Indiana District Office (jointly referred to as the Respondent) violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by bypassing the Charging Party and dealing directly with bargaining unit employees concerning contemplated changes in employees' conditions of employment. The Respondent's action which allegedly violated the Statute consisted of polling the employees to determine whether they preferred to be assigned to the Respondent's new Northside satellite office. The Judge concluded that the Respondent's conduct did not constitute an unfair labor practice.

The General Counsel filed exceptions to the Judge's Decision, and the Respondent filed an opposition to the General Counsel's exceptions. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge and find that no prejudicial error was committed. The rulings are affirmed. We conclude, in agreement with the Judge, that the Respondent did not bypass the Charging Party and did not commit the unfair labor practices alleged in the complaint. [PAGE]

II. Facts

By memorandum of June 24, 1986, the National Treasury Employees Union, Chapter 49 (the Union) notified the Internal Revenue Service, Indianapolis, Indiana District Office that it was aware that the Respondent was intending to set up a new satellite office, and that it wished to negotiate the full range of matters that may have an impact on bargaining unit employees. By letter of September 4, 1986, the District Director notified the Union that the Respondent was planning to establish a Northside satellite office in the fall. The letter acknowledged the Union's request to negotiate aspects of this action, and stated that prior to formulating a plan of action, the Respondent preferred to "ascertain the level of interest among Indianapolis headquarter employees who would prefer a reassignment to this new office within the commuting area." The letter advised the Union that the Respondent intended to canvass employees through their immediate managers beginning September 10 with responses to be received by September 19. The letter concluded with the following:

      Once the level of interest is ascertained, we will
      share with you our plans for determining staffing
      assignments. Please advise (my staff) of any comments
      or suggestions you may have regarding any aspects of
      this action.

By letter of September 9, the Union replied and repeated its request to negotiate over matters which might have an impact on unit employees. The Union's response did not object or refer to the Respondent's intended polling of employees.

The Respondent polled about 100 employees in the Collection and Examination Divisions between September 10 and 19 to determine whether they were interested in working in the new office. By letter of October 6, the Respondent informed the Union of the results of the poll, and requested the union to arrange a "mutually convenient time for an exploratory meeting in regard to the proposed Northside office."

On October 20, the parties began negotiations over how employees would be assigned to the new satellite office. At this meeting, the Union also asked the Respondent why it had canvassed the employees, and received no answer. By letter [ v31 p2 ] of October 24, 1986, the Respondent responded to certain questions raised by the Union at the October 20 meeting. The parties met further in negotiations on November 17 and 26, and December 16. On December 19, the Respondent sent a memorandum to the Union setting forth the procedures it would follow in staffing the new office. The memorandum noted that the Respondent had fully considered the Union's input in determining the procedures.

The Respondent opened the new office on December 29. All Collection Division employees who had expressed a desire to be reassigned to that office were selected. Not enough positions were available to accommodate all of the Examination Division employees who had expressed a desire to be reassigned; those positions were filled according to the procedure described in the December 19 memorandum.

III. Administrative Law Judge's Decision

The Judge recommended that the complaint be dismissed. He first noted that on August 18, 1987, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision in National Treasury Employees Union v. FLRA, 826 F.2d 114 (D.C. Cir. 1987), affirming three Authority decisions regarding the issue of bypass. 1 In each of those decisions (discussed by the Judge at pp. 9-10 of his Decision), the Authority found that an agency's distribution of questionnaires to employees did not constitute a bypass of the union because there was no showing that the agency's actions undermined the status of the union as the exclusive representative.

The Judge next found that in this case, the Respondent: (1) gave the Union advance notice of its intention to open the satellite office and to poll unit employees; (2) communicated to the Union the reason for the poll--to ascertain the level of interest among employees who would prefer a reassignment to the new office; (3) limited the poll to a simple inquiry as to the interest of individual employees in working at the new location; (4) freely shared the results of the survey with the Union; and (5) indicated [ v31 p3 ] that it would negotiate with the Union on matters concerning the new office. The Judge also found that there was no evidence: (1) that employees polled were given to believe that an expression of interest would automatically result in a reassignment; (2) of any further discussions with or attempts to persuade employees; or (3) that the Respondent shared the results of the poll with employees or engaged in any conduct which might tend to undermine the Union in its later dealings with the Respondent.

The Judge found that, in sum, the record failed to show that the Respondent sought to deal or negotiate directly with unit employees with regard to matters properly bargainable with the Union, or that the Respondent intended to use the information gained from the polling so as to undermine the Union in its status as exclusive representative. The Judge therefore concluded that no bypass had been established under the Statute, and recommended that the complaint be dismissed. In view of his disposition of the case, the Judge did not address the Respondent's argument that under the parties' master agreement, the Union had waived its right to bargain over the procedures to be applied in selecting employees for reassignment within a post of duty, including the right to contact employees directly.

IV. Positions of the Parties

The General Counsel excepts to the Judge's conclusion that there was no bypass and contends that the Judge applied the incorrect Authority case law in analyzing this case. The General Counsel argues that by polling its employees, the Respondent sought their opinions as to proposed changes in their conditions of employment and that this conduct was an improper attempt by management to negotiate or deal directly with unit employees concerning such matters. In support of this argument, the General Counsel relies principally on United States Department of Transportation, Federal Aviation Administration, 19 FLRA 893 (1985) (FAA), and Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 28 FLRA 409 (1987) (SSA), in which the Authority found that unlawful bypasses had occurred. The General Counsel also asserts that the Judge based his conclusion that no bypass had occurred on irrelevant or unsupported facts. Finally, the General Counsel "cites the intention of Respondent to negotiate, and the actual negotiations, to demonstrate that the polling of the employees clearly had the effect of 'inherently undermining' the status of the exclusive representative(.)" General Counsel's Brief in Support of Exceptions at 9. [ v31 p4 ]

In its opposition, the Respondent asserts that the Judge properly applied Authority and judicial precedent to the facts of this case. The Respondent asserts that the General Counsel's contention--that an agency may not obtain information directly from unit employees in anticipation of the immediate implementation of changes in conditions of employment--considerably expands the holding in FAA and directly contravenes the Authority's decisions affirmed by the D.C. Circuit in NTEU v. FLRA. The Respondent states that the court specifically recognized the right of agencies to obtain reliable information which is not filtered through a union, and that in affirming the Authority's decisions the court found the following factors significant: (1) prior notification to the union of the agency's intent to solicit information; (2) an assurance that the obligation to negotiate with the union concerning changes in conditions of employment is recognized; and (3) a promise that the information obtained from employees would be shared with the union itself. The Respondent asserts that the Judge specifically determined that each of these factors is present in this case and properly considered them.

Finally, the Respondent contends that if the Authority finds merit in the General Counsel's exception, the case should be remanded to the Judge to resolve the question which the Judge did not reach--whether, under the parties' negotiated agreement, the Union waived its right to bargain over the reassignment of employees.

V. Discussion

In NTEU v. FLRA, the court reviewed three decisions of the Authority in which agencies distributed questionnaires requesting information concerning conditions of employment directly to employees without the approval or involvement of the exclusive representative. In affirming the Authority's decisions, the court held that the Statute "does not impose a per se rule against any direct solicitation by management of information concerning conditions of employment from employees represented by a duly recognized labor union." NTEU v. FLRA, 826 F.2d at 122 (emphasis in original).

The court noted that under the Statute, "management has the dual obligation to bargain with its employees' exclusive representative in good faith and to advance the public's interest in efficient government." Id. at 123 (emphasis in original). According to the court, "achievement of the [ v31 p5 ] latter goal will at all times require reliable information and views only employees are in a position to give; and . . . the reliability of such information will not be enhanced by filtering through a third party such as a union. . . . At the same time, a search for reliable information may not be used as a screen behind which to subvert a union's role as its members' exclusive collective bargaining representative." Id. The court then concluded that cases of this type are to be examined in the light of the following guidance provided by the Authority in Internal Revenue Service, (District, Region, National Office Units), 19 FLRA at 354, which the court endorsed:

      (A)n agency may question employees directly provided
      that it does not do so in a way which amounts to
      attempting to negotiate directly with its employees
      concerning matters which are properly bargainable with
      its employees' exclusive representative. In this
      regard . . . management must have the latitude to
      gather information, including opinions, from unit
      employees to ensure the efficiency and effectiveness
      of its operations.

826 F.2d at 123. The court applied this principle to the three cases before it, and found in each instance that the agency's actions did not constitute attempts to negotiate or deal directly with unit employees so as to improperly bypass the exclusive representative. Id. at 123-24.

Applying this principle to the facts of this case, we agree with the Judge that the Respondent did not commit an unfair labor practice. The Respondent gave the Union notice of its intent to open the new office and to poll unit employees, and explained the limited purpose of the poll to the Union. In response to the Respondent's request for the Union's comments or suggestions, the Union did not object to or even mention the intended polling. The poll was then conducted and limited to a simple inquiry as to individual employees' interest in working at the new location. There is no evidence that the Respondent gave the employees any indication that an expression of intent would result in reassignment or that the Respondent discussed the matter with or attempted to persuade employees. The Respondent did not seek the employees' opinions as to the manner in which employees should be chosen for reassignment. The Respondent shared the results of the poll with the Union, indicated that it was open to negotiate on matters concerning the new office, and negotiated with the Union before the office was opened. [ v31 p6 ]

In our view, these circumstances are "indicia of good faith," similar to those noted by the court in NTEU v. FLRA, 826 F.2d at 123, which demonstrate the Respondent's recognition of its statutory obligation to negotiate with the Union. We reject the General Counsel's assertion that the Respondent's intention to negotiate, and the actual negotiations, demonstrate that the polling had the effect of undermining the status of the exclusive representative. The record fails to show that the Respondent's action in any way undermined the Union in its status as exclusive representative. We find no basis for concluding that the Respondent committed an unfair labor practice.

Contrary to the General Counsel's argument, the Authority's decisions in SSA and FAA do not stand for the proposition that polling of employees in anticipation of implementation of changes in conditions of employment will always be found to be an unlawful bypass. Rather, consistent with the Authority's case law and the court's decision in NTEU v. FLRA, the facts of each case must be analyzed. In order to determine whether a polling of employees violates the Statute, consideration will be given to the nature of the information sought by a poll, the manner in which the poll is conducted, how the information is used, and similar relevant factors. As discussed above, we agree with the Judge that based on consideration of these factors in this case, no unfair labor practice was committed. In so finding, we note particularly that the Respondent advised the Union of the intended polling and requested its comments and suggestions, and the Union did not raise any objection before the polling occurred even though it had the opportunity to do so.

VI. Conclusion

We conclude that the Respondent did not violate section 7116(a)(1) and (5) of the Statute as alleged in the complaint.

VII. Order

The complaint is dismissed.

Issued, Washington, D.C., March 16, 1988

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
WASHINGTON, D.C. AND
INTERNAL REVENUE SERVICE,
INDIANAPOLIS, INDIANA
DISTRICT OFFICE

              Respondent

    and

NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 49

              Charging Party

Case No. 5-CA-70039

John A. Freeman, Esq. and
Clarence E. Barnes, Esq. on the brief
    For the Respondent

Jefferson D. Friday, Esq. and
Michael T. McAuley, Esq. on the brief
    For the Charging Party

John F. Gallagher, Esq.
    For the General Counsel

Before:  SALVATORE J. ARRIGO
         Administrative Law Judge

DECISION

Statement of the Case

This case arose under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq. (herein the Statute).

Upon an unfair labor practice charge having been filed by the captioned Charging Party (herein the Union) against the captioned Respondent, the General Counsel of the Federal Labor Relations Authority (herein the Authority), by the [PAGE] Regional Director for Region V, issued a Complaint and Notice of Hearing alleging Respondent violated the Statute by bypassing the Union and dealing directly with the bargaining unit employees concerning changes in working conditions.

A hearing on the Complaint was conducted in Indianapolis, Indiana at which all parties were represented by counsel and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by all parties and have been carefully considered.

Upon the entire record in this case, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following:

Findings of Fact

The Internal Revenue Service maintains and operates a National Office in Washington, D.C. and various other offices throughout the country including a District Office in Indianapolis, Indiana. At all times material the National Treasury Employees Union has been certified as the exclusive representative of all Respondent's professional and non-professional employees in district and regional offices and in the National Office, including employees of the Indianapolis District Office, with certain exclusions not material herein. At all times material the National Treasury Employees Union, Chapter 49 has been an agent of the National Treasury Employees Union acting on its behalf with respect to the employees at the Indianapolis office. Respondent and the Union have been, and are now, parties to a collective bargaining agreement, known as NORD II, covering the employees in the collective bargaining unit described above.

Opening the Northside Office

Sometime in early 1986 the Union became aware Respondent was considering opening a satellite office or offices in the Indianapolis District. The Union on June 24, 1986 wrote Respondent indicating if such came to pass, the Union wished to negotiate "the full range of the issue" since the Union felt it was a new mode of operation for the District and would have a significant impact on the organization and other aspects of employment. The parties apparently had no further communication on this matter until September 4, 1986 when Respondent sent the Union the following letter: [ v31 p2 ]

         "We are planning to establish a Northside satellite
         office at Meridian and 116th Streets this fall. We are
         in receipt of your letter of June 24, 1985 requesting
         to negotiate aspects of this action. Prior to
         formulating a plan of action, we prefer to ascertain
         the level of interest among Indianapolis headquarter
         employees who would prefer a reassignment to this new
         office within the commuting area. Both a Collection
         and Examination group will be situated there along
         with several employees from the Criminal Investigation
         Division. Authorization for moving expenses will not
         be made relative to these reassignments. We intend to
         canvass headquarters employees through their immediate
         managers beginning September 10 with responses from
         employees to be received no later than September 19.

         "Once the level of interest is ascertained, we will
         share with you our plans for determining staffing
         assignments. Please advise . . . of any comments or
         suggestions you may have regarding any aspects of this
         action."

The Union replied to Respondent on September 9, 1986, stating:

         "It has been brought to our attention that the
         Indianapolis District has received approval to set up
         one or more Satellite offices which offices will be
         designed to perform one or several functions. This is
         a new mode of operation for this District and will
         have a significant impact on the organization and
         distribution of employees and the types of jobs and/or
         tasks to be performed. Because of these concerns we
         hereby issue to you our formal notice that we wish to
         negotiate the full range of the issue including
         necessity, substance, impact, implementation and all
         other facets pertinent to the makeup, manning,
         workspace, worktasks, furniture

[ v31 p3 ]

         and equipment and anything else that may pertain to an
         impact upon bargaining-unit employees.

         "Rather than make meaningless proposals at this time,
         we sincerely suggest that one or more preliminary
         meetings be held to discuss the matters so that all
         may better understand the full purpose, goal and scope
         of the new function or sub-organizations. Subsequent
         thereto meaningful proposals will be submitted as soon
         as possible and practical. Please contact . . . to
         arrange for a meeting or meetings at the earliest
         possible date and time that is mutually convenient to
         all parties. We request and fully expect that there
         will be no plans finalized until all matters mentioned
         are fully resolved and agreed upon whether by
         negotiated agreement or through arbitration."

Between September 10 and September 19, 1986 Respondent polled approximately 100 bargaining unit employees in its Indianapolis Collection and Examination Divisions. Employees were asked through group managers if they were interested in working at the new Northside satellite office in Carmel, Indiana, noting that no moving expenses would be authorized. On October 6 Respondent notified the Union of the results of the poll through the following letter:

         "As we earlier indicated to you, the divisions
         involved have polled their employees to determine
         interest in reassignment. In the Collection Division,
         most employees in Group 25 have expressed an interest
         in reassignment. Collection is proposing to reassign
         all employees in this group who have expressed such
         interest which will fully staff the new office.

         "In the Examination Division, the number of employees
         who have expressed interest exceeds the number of
         slots available. The Division is proposing to exclude
         Revenue Agents in specialty areas from consideration
         for reassignment and to

[ v31 p4 ]

         select from among volunteers according to federal
         length of service. A proposed new group will include
         employees to be assigned to the Northside Office as
         well as the current Kokomo Exam employees. Kokomo
         employees will continue to work out of the Kokomo
         Office.

         "A new position to be located in the Northside Office,
         a Multi-functional Clerk, has been announced
         competitively.

         "Please consider this a notice under NORD II Article
         47 for which the three week notice will run from this
         date or from the date of an exploratory meeting
         regarding this matter, please contact me within five
         workdays to arrange a mutually convenient time for an
         exploratory meeting in regard to the proposed
         Northside Office."

The parties met in negotiations concerning how employees would be assigned to the Northside satellite office on October 20, 1986 at which meeting the Union, inter alia, protested Respondent's polling unit employees. On October 24 Respondent sent the following communication to the Union:

         "(This) is in response to questions raised by NTEU
         Chapter #49 during the exploratory meeting on the
         proposed Northside Office on October 20, 1986.

         "On September 4, 1986, we notified you by letter of
         our plan to create a Northside Office. The Northside
         Office is expected to be opened sometime in January
         1987. Our letter of September 4, 1986 met our
         notification obligation under NORD II Article 47.

         "We would be willing to give NTEU #49 a letter stating
         that management has determined to give strong
         consideration to the expressed wishes of any employee,
         including Examination Specialists, as well as to their
         IRS length of service in deciding who will go to the
         Northside Office. However, we feel we are

[ v31 p5 ]

         precluded from negotiating any provision which would
         impinge on management's reserved right to assign work.

         "We do not feel that future staffing procedures for
         the Northside Office fall within the purview of the
         matter at hand, which is the creation and initial
         staffing of the Northside Office. Subsequent vacancies
         will be filled under the provisions of NORD II as
         appropriate.

         "It has been determined that the Northside Office will
         not be a post of duty but a satellite office of the
         Indianapolis Post of Duty. . .

         "As provided by NORD II, Article 47, any proposals you
         may wish to make regarding this matter should be
         submitted to me no later than November 10, 1986."

The parties also met in negotiations sessions and discussed the matter on November 17, November 26 and December 16, 1986. On December 19 Respondent sent the following memorandum to the Union:

         "This is to transmit the procedures the District will
         follow in staffing the Northside Office which we most
         recently discussed with you on December 16, 1986. We
         have fully considered the Chapter's input in
         determining this procedure and recognize that employee
         concerns in this regard can be raised under the
         negotiated grievance procedure. It should be noted
         that Authorization for moving expenses will not be
         made relative to these assignments.

            "Staffing Procedures/Northside Office

         "A. PROCEDURES TO BE USED IN SELECTION OF EMPLOYEES:
         TO fill the bargaining unit employee (staff)
         requirements of the Northside Office, management will
         first seek

[ v31 p6 ]

         volunteers. A notice will be posted on all
         headquarters office official bulletin boards to
         solicit volunteers. Should more employees volunteer
         than are needed, then they will be selected by IRS
         seniority. In case of a tie in IRS seniority, the tie
         will be broken by all government service seniority.
         Should a tie still exist, management will exercise its
         discretion in selecting the employee to fill the
         position. To the extent there are insufficient
         volunteers, management may select qualified employees
         by inverse seniority, that is, among the qualified
         employees from which reassignment is to be made, the
         qualified employee with the least amount of IRS
         seniority may be selected and assigned. Management
         reserves the right to determine the General Schedule
         grade levels and qualifications necessary to staff the
         Northside Office and will publish such grades and
         qualifications in the notice described above.

         "B. RESTRICTIONS ON CANDIDATES: All Indianapolis
         headquarters office Collection and Examination
         employees currently occupying positions in such series
         and grades as have been designated by management to be
         filled in the Northside Office or who are eligible for
         noncompetitive reassignment to such positions may
         apply and receive consideration. Employees serving on
         special projects, as specialists or on rotation
         assignments will receive equal consideration. However,
         management reserves the right to bypass a volunteer
         should it be necessary because of the employee's
         workload, the workload of the employee's division or
         unit or because of the employee's current poor job
         performance.

[ v31 p7 ]

         "C. FUTURE VACANCIES: In filling future vacancies in
         the Northside Office, management will use, to the
         maximum extent possible, volunteers. Employees
         interested in working in the Northside Office should
         make wishes known to their supervisors, including
         their manager, branch chief and division chief.
         Management will make every effort not to involuntarily
         reassign employees to work sites outside their normal
         commuting area or in lieu of discipline or where it
         would cause employees a severe hardship. . ."

Thereafter Respondent posted an announcement and positions in the Northside Office, which was within the Indianapolis Post of Duty, were filled in accord with the responses received. The Northside Office opened on December 29, 1986 and all Collection Division employees who previously expressed a desire to be laterally reassigned were selected. More Examination employees volunteered for lateral reassignment than could be accommodated and the selection procedures set forth in the letter of December 19, above, was followed with regard to those employees.

The NORD Agreements

As stated above, Respondent and the Union are parties to a collective bargaining agreement called NORD II. That agreement, effective May 27, 1985, replaced a prior agreement between the parties called NORD I. In Internal Revenue Service, Denver District, Colorado, 17 FLRA 192 (1985) the Authority held that in NORD I the Union had waived its right to bargain over the lateral reassignment of employees within a post of duty. Article 13 of NORD II entitled "Promotions/Other Competitive Actions" is essentially the same as Article 7 of NORD I. Further, Article 15 of NORD II entitled "Reassignments" is basically the same as Article 29 of NORD 1. The record reveals that although during negotiations for NORD II the parties engaged in extensive discussions on the language of Article 15, the language regarding "Reassignments" was retained as it was in the prior agreement at the direction of the arbitrator involved in the negotiations. [ v31 p8 ]

Discussion and Conclusions

The General Counsel and the Union contend Respondent's polling employees as to their interest in being reassigned to the Northside Office constituted a bypass of the Union and an attempt to negotiate or deal directly with unit employees concerning a condition of employment thereby violating section 7116(a)(1) and (5) of the Statute. Respondent denies its polling of employees constituted a illegal bypass of the Union and further contends that under the NORD agreements the Union waived its right to bargain over reassignments within a post of duty, as herein, and the right to reassign carries with it the right to contact employees directly.

On August 18, 1987 the United States Court of Appeals for the D.C. Circuit issued its decision in National Treasury Employees Union v. Federal Labor Relations Authority, et al., F.2d , (Nos. 85-1597, 1681 and 1635), affirming three decisions of the Authority with regard to the issue of bypass. In one of these Authority cases, Internal Revenue Service (District, Region, National Office Units), 19 FLRA 353 (1985), IRS distributed to certain unit employees a questionnaire in an effort to study its appeals organization. IRS notified the union of its intentions and supplied the union with copies of questionnaires and informed them that it would notify the union and supply relevant information from the study if, as a result of the study, it determined to make changes affecting the bargaining unit. The Authority concluded that the questionnaire was a permissible information gathering mechanism related to the activity's studying its operations and found no bypassing of the union occurred, citing the activity's recognizing its obligations to bargain with the exclusive representative and the absence of any indication that the activity attempted to deal or negotiate directly with unit employees or create the appearance of doing so.

Another Authority case the court affirmed in its decision was United States Customs Service, 19 FLRA 1032 (1985). In that case it was contended that the activity engaged in an unlawful bypass in derogation of its duty to bargain with the exclusive representative when it distributed questionnaires to employees to elicit opinions and information concerning the operation of a newly implemented employee performance appraisal system without prior notice to the union. The Authority found, with court approval, that no violation of the Statute occurred since [ v31 p9 ] there was no indication that through the questionnaires the activity attempted to change any conditions of employment of unit employees and in the circumstances of the case distribution of the questionnaires was not an attempt to deal or negotiate directly with unit employees concerning working conditions but was to gather information on the operation of the existing performance appraisal system.

In the third case affirmed by the court, Department of Defense, Office of Dependent Schools, 19 FLRA 762 (1985), it was alleged that the activity violated the Statute when it distributed a questionnaire to recently hired teachers concerning the activity's recruitment and appointment process without prior notice to the union. The questionnaire was accompanied by a memorandum which solicited employees' suggestions for improvements and the subject matter was to be covered as part of contract negotiations scheduled to begin in the near future. The Authority refused to find an unlawful bypass of the union and stated, inter alia:

         "It is neither alleged nor shown that the Respondent
         intended to or did use the information gained from the
         questionnaires in a way which would undermine the
         status of the exclusive representative. In our
         opinion, the questionnaires merely elicited factual
         information and the views of newly recruited employees
         concerning the Respondent's recruitment and
         appointment process. Further, the record fails to show
         that the Respondent by any other action sought to or
         did in fact attempt to negotiate directly with unit
         employees concerning their conditions of employment."

In the case herein Respondent gave the Union advance notice of its intention to open the satellite office and to poll unit employees. The reason for the poll, ". . . to ascertain the level of interest among Indianapolis headquarter employees who would prefer a reassignment to this new office", was communicated to the Union and the poll was limited to a simple inquiry as to individual employee's interest in working at the new Northside location. There is no evidence that employees polled were given to believe that an expression of interest would automatically result in a reassignment. The