38:0875(74)CA - - Treasury, Customs Service, Washington, DC and NTEU - - 1990 FLRAdec CA - - v38 p875



[ v38 p875 ]
38:0875(74)CA
The decision of the Authority follows:


38 FLRA No. 74

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

CUSTOMS SERVICE

WASHINGTON, D.C.

(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION

(Charging Party)

3-CA-90302

DECISION AND ORDER

December 10, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with part 2429.1(a) of the Authority's Rules and Regulations, based on the parties' stipulation of facts. The Respondent filed a brief with the Authority. The General Counsel's brief was untimely filed and, for the reasons stated below, has not been considered. The Union did not file a brief.

The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing a directive concerning the policy and procedures for coordinating General Accounting Office (GAO) and other agency audits/investigations involving unit employees without providing the Union with prior notice and an opportunity to negotiate over the impact and implementation of the directive.

For the following reasons, we find that the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing the directive without providing the Union with prior notice and an opportunity to negotiate over the impact and implementation of the directive. Accordingly, we will issue an appropriate remedial order.

II. Facts

As set forth in the parties' stipulation, the Union is the exclusive representative of a nationwide unit of approximately 13,000 employees of the Respondent. Stipulation, paragraph 5. On or about September 30, 1988, the Respondent implemented Directive 1300-04 concerning the policy and procedures for coordinating GAO and other agency audits/investigations that involve the Respondent's employees. Stipulation, paragraph 6. The directive provides, in part, that "[a]s a basic general rule, there will be no contact or exchange of information between any Customs employee and any representative of the General Accounting Office or any other Government agency attempting to conduct an audit, investigation, inquiry, etc., within Customs unless such action is first coordinated by the Office of Internal Affairs and approved by Headquarters Management." Stipulation, Joint Exhibit 4 at 2. The directive also states that

[s]hould any Customs employee be contacted by any GAO or other agency representative who is attempting to conduct an audit, investigation, survey, evaluation, etc., and such activity has not been coordinated and approved in accordance with this directive, the Customs employee will tactfully refuse to cooperate . . . . [and] will show the GAO or other Government agency representative a copy of this directive as their authority for their action.

Id. at 4. Further, the directive provides that the Customs employee should: (1) "instruct the individual to obtain proper approval for their initiative"; and (2) "immediately" notify, by telephone, the Director of the Office of Internal Audit of the incident. Id.

The Respondent issued the directive without providing the Union with prior notice and an opportunity to negotiate over the impact and implementation of this "new matter." Stipulation, paragraph 7. The directive is binding on all unit employees, and employees who fail to follow the policy and procedures contained in the directive can be subject to discipline. Stipulation, paragraph 8. The directive was effective as of September 20, 1988 and continues to remain in effect. Stipulation, paragraph 9.

As noted in the parties' stipulation, the "Respondent reserves [the] right to ask the Authority to take official notice of such matters as would be proper under section 2429.5 of the Authority's Regulations" and the General Counsel and the Union "reserve [the] right to file responses." Stipulation, paragraph 11.

III. Procedural Matters

A. Waiver of Expired Time Limits

The General Counsel notes that its brief was "technically untimely" but requests that the Authority waive the expired time limits and consider the General Counsel's brief. General Counsel's Motion at 3.

Section 2429.23(b) of the Authority's Rules and Regulations permits the Authority to waive an expired time limit in "extraordinary circumstances." The parties' briefs were due to be filed with the Authority by November 13, 1989. According to the General Counsel's representative in the Washington Regional office, its brief was picked up by courier at approximately 3:00 p.m. on November 13, 1989 and was received by the Authority's docket room at 5:40 p.m. on November 13, 1989. The General Counsel contends that "such late receipt should be excused" because it was due to "circumstances beyond [its] control[.]" Id. at 3. Specifically, the General Counsel states that "the courier was very busy and was not able to reach the FLRA's docket room until after 5 p.m." Id. at 2.

We find that the General Counsel's assertions do not establish extraordinary circumstances warranting a waiver of the expired time limits to file a brief with the Authority. Accordingly, we deny the General Counsel's motion and will not consider the General Counsel's brief.

B. Official Notice

Pursuant to paragraph 11 of the Stipulation, the Respondent requests the Authority to take official notice of the nine attachments to its brief. The Respondent contends that these documents set forth its internal audit policy from 1967 to the present, as well as portions of its policies and procedures manual and the collective bargaining agreement.

The General Counsel filed a response to the Respondent's request that the Authority take official notice of the nine attachments to the Respondent's brief. The General Counsel contends that the attachments do not constitute the type of extra-record information that can be added to the record through official notice. While not opposing admission of portions of the parties' collective bargaining agreement (Attachment 9), the General Counsel claims that it is inappropriate to take official notice of the other documents because they are "extracts from an agency's internally maintained and apparently expired documents." General Counsel's Response at 2. Should the Authority decide to take official notice of the documents, the General Counsel claims that the "substance of these documents is immaterial to the complaint" because the documents predate and are not referenced in the directive. Id.

In response to the General Counsel's opposition to the official notice request, the Respondent asks that, if the Authority decides not to take official notice of the nine attachments, the case be remanded to the Regional Director pursuant to section 2429.1 of the Authority's Rules and Regulations for the purpose of scheduling an evidentiary hearing.

Section 2429.5 of the Authority's Rules and Regulations permits the Authority to take official notice of matters not previously presented in prior proceedings "as would be proper." Official notice is a broader concept than judicial notice. See McLeod v. Immigration and Naturalization Service, 802 F.2d 89, 93 n.4 (3d Cir. 1986); and Dayco Corp. v. Federal Trade Commission, 362 F.2d 180, 186 (6th Cir. 1966). Official notice involves the acceptance of commonly known facts as well as matters within the specialized knowledge or expertise of the administrative agency. 4 Stein, Administrative Law § 25.01 (1986).

In our view, the Authority may take official notice of directives promulgated by an agency that is a party to a proceeding before us where the authenticity of those directives (as distinguished from the weight, if any, to be given them) is unchallenged. Therefore, we reject the General Counsel's contention that the attachments in dispute in this case do not constitute the type of extra-record information that can be added to the record through official notice. The General Counsel also contends that the attachments are "apparently expired." General Counsel's Response at 2. In our view, this contention addresses only the weight to be given the attachments, not whether the attachments accurately reflect the directives as of the time of their issuance. In these circumstances, we conclude that it is proper to take official notice of the attachments.

IV. The Respondent's Position

The Respondent asserts that the directive "was not a new policy but rather represented a continuation and revitalization of [an] existing policy, albeit with some modifications and elaboration." Respondent's Brief at 4. According to the Respondent, "[t]he modifications which relate to bargaining unit employees, e.g. that there be no exchange of information between employee[s] and GAO unless such action is first coordinated by the [Respondent's] Office of Internal Affairs etc., are relatively minor and do not constitute a unilateral change in existing terms and conditions of employment concerning the existence of Respondent's liaison policy with the General Accounting Office." Id. The Respondent asserts that "[t]he requirement that employees not provide information to GAO and other agency investigators unless the investigative action is coordinated with the Office Of Internal Affairs is more in the nature of a modification and elaboration of Respondent's policy and does not, in Respondent's view, constitute evidence of extensive deviation from existing policy." Id. at 5.

The Respondent contends that if the Authority finds that implementation of the directive does change unit employees' conditions of employment, the Respondent had no duty to bargain over the impact and implementation of the directive because the impact or reasonably foreseeable impact of the change in conditions of employment was no more than de minimis. The Respondent states that, "[w]hile there may be some apparent modifications in employee responsibilities in Respondent's liaison relationship with the General Accounting Office, . . . they were not sufficient to give rise to a bargaining obligation." Id. at 6. Specifically, the Respondent maintains that "the fact that employees are expected to conform their conduct to the requirements of the Directive and could be subject to possible disciplinary action for noncompliance is not really a change from existing policy" because "[e]mployees have always been subject to disciplinary action for not conducting themselves in accordance with Respondent's liaison policy[.]" Id.

Finally, the Respondent argues that if the Authority concludes that the Respondent's failure to provide the Union with prior notice and an opportunity to bargain over the impact and implementation of the directive constitutes a violation of section 7116(a)(1) and (5) of the Statute, no status quo ante remedy should be granted because such a remedy is not necessary to effectuate the purposes and policies of the Statute. Id.

V. Analysis and Conclusions

For the following reasons we find that Directive 1300-04 concerns conditions of employment of bargaining unit employees and that the Respondent's implementation of the directive constituted a change in conditions of employment that was more than de minimis. As the Respondent issued the directive without providing the Union with prior notice and an opportunity to negotiate over the impact and implementation of the directive, we conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute.

An agency must negotiate with the exclusive representative over changes in unit employees' conditions of employment, except as provided otherwise by Federal law, Government-wide rule or regulation, or agency regulations for which a compelling need exists. Even if the decision to effect the change in conditions of employment is outside the duty to bargain, an agency must bargain about the impact and implementation of a change that has more than a de minimis impact on unit employees. See United States Army Adjutant General Publication Center, St. Louis, Missouri, 35 FLRA 631, 634 (1990) (United States Army Adjutant General Publication Center).

In deciding whether a matter involves a condition of employment of bargaining unit employees, the Authority considers whether: (1) the matter pertains to bargaining unit employees; and (2) the record establishes that there is a direct connection between the matter and the work situation or employment relationship of bargaining unit employees. Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 237 (1986).

The parties do not dispute that: (1) the directive pertains to bargaining unit employees; and (2) there is a direct connection between the Respondent's directive and the work situation or employment relationship of the bargaining unit employees in this case. Rather, the Respondent contends that "[t]he modifications [in the directive] which relate to bargaining unit employees . . . are relatively minor and do not constitute a unilateral change in existing terms and conditions of employment concerning the existence of Respondent's liaison policy with the General Accounting Office." Respondent's Brief at 4. We note, however, that the parties stipulated that the directive constituted a "new matter." Stipulation, paragraph 7. Further, the Respondent acknowledges that the directive contains "modifications" and notes that one of those "modifications" is that "there be no exchange of information between employee[s] and GAO unless such action is first coordinated by the [Respondent's] Office of Internal Affairs[.]" Respondent's Brief at 4. Accordingly, we reject the Respondent's argument that the directive did not constitute a change and, instead, find that the Respondent's implementation of the directive constituted a change in conditions of employment.

As noted previously, even if the decision to effect the change in conditions of employment is outside the duty to bargain, an agency must bargain over the impact and implementation of a change that has more than a de minimis impact on unit employees. United States Army Adjutant General Publication Center. There is no assertion in this case that the decision to change the directive was negotiable. Accordingly, we will confine our decision to the issue of whether the Respondent was required to bargain over the impact and implementation of the change.

To determine whether a change has more than a de minimis impact on unit employees, the Authority examines the record and places principal emphasis on such general areas of consideration as the nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employment. Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986). For examples of the Authority's application of this standard, see U.S. Department of Justice, Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 35 FLRA 1039 (1990) (U.S. Department of Justice); Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 31 FLRA 651, 655-56 (1988); and Department of Health and Human Services, Family Support Administration, 30 FLRA 346 (1987).

Applying that standard to this case, we note that the directive is binding on all unit employees, and employees who fail to follow the policy and procedures contained in the directive can be subject to discipline. Stipulation, paragraph 8. We further note that, as acknowledged by the Respondent, the directive contains modifications to the Respondent's previous policy. For example, employees are required to "tactfully refuse to cooperate" with "any GAO or other agency representative who is attempting to conduct an audit, investigation, survey, evaluation, etc.," when "such activity has not been coordinated and approved in accordance with [the] directive[.]" Stipulation, Joint Exhibit 4 at 4. When such an incident occurs, employees are also required to "instruct the individual to obtain proper approval for their initiative" and "immediately" notify, by telephone, the Director of the Office of Internal Audit of the incident. Id.

Requiring employees to "tactfully refuse to cooperate" with GAO or other agency representatives attempting to conduct an audit, investigation, survey, or evaluation, and subjecting employees to discipline for failing to do so expands the matters for which employees would be subject to possible discipline. As the Respondent changed employees' working conditions by expanding the matters for which employees would be subject to possible discipline, we conclude that the change in unit employees' conditions of employment is more than de minimis. Further, we conclude that assigning employees additional collateral duties with respect to audits, investigations, surveys, and evaluations conducted by other agencies and subjecting employees to discipline for failing to perform those duties similarly constitutes a change in their conditions of employment that is more than de minimis. See U.S. Department of Justice, 35 FLRA at 1039, 1048-49 (the Authority adopted the administrative law judge's decision that assigning collateral intelligence duties to bargaining unit employees constituted a change in conditions of employment that was more than de minimis).

We reject the Respondent's argument that the reasonably foreseeable impact of the change was no more than de minimis because employees had always been subject to discipline for failing to follow directives and circulars. Respondent's Brief at 6. While prior circulars stated that audits were to be coordinated through a specific office of the Respondent, those circulars did not subject employees to discipline for cooperating or exchanging information with GAO or other agency representatives attempting to conduct an audit, investigation, survey, or evaluation. Accordingly, we reject the Respondent's argument that the directive "does not constitute a change of sufficient magnitude to require impact and implementation bargaining with the Union under the Authority's revised 'de minimis' standard." Id.

For the foregoing reasons, we conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing Directive 1300-04 without providing the Union with prior notice and an opportunity to negotiate over the impact and implementation of the directive. No request has been made for a status quo ante remedy and, as a result, no arguments have been made as to the applicability of the factors set forth in Federal Correctional Institution, 8 FLRA 604 (1982). Accordingly, to remedy the unfair labor practices in this case, we will issue a prospective bargaining order and require the Respondent to post an appropriate remedial Notice.

VI. Order

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 United States Department of the Treasury, United States Customs Service, shall:

1. Cease and desist from:

(a) Failing and refusing to negotiate in good faith with the National Treasury Employees Union, the exclusive representative of its employees, concerning the procedures to be observed in implementing the changes in conditions of employment set forth in Directive 1300-04 and concerning the appropriate arrangements for employees adversely affected by such changes.

(b) Issuing and implementing Directive 1300-04 without first notifying the National Treasury Employees Union, the exclusive representative of its employees, and affording it the opportunity to negotiate concerning the procedures to be observed in implementing the changes in conditions of employment set forth in Directive 1300-04 and concerning the appropriate arrangements for employees adversely affected by such changes.

(c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Upon request, negotiate in good faith with the National Treasury Employees Union, the exclusive representative of its employees, concerning the procedures to be observed in implementing the changes in conditions of employment set forth in Directive 1300-04 and concerning the appropriate arrangements for employees adversely affected by such changes.

(b) Notify the National Treasury Employees Union, the exclusive representative of its employees, of any intention to change its policies with regard to the conditions of employment encompassed in Directive 1300-04 and, upon request, afford it the opportunity to negotiate about the procedures to be observed in implementing such changes in conditions of employment, and about the appropriate arrangements for employees adversely affected by such changes.

(c) Post at its Customs Service facilities nationwide, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commissioner of Customs, and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted, and shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that the Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.20 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to negotiate in good faith with the National Treasury Employees Union, the exclusive representative of our employees, concerning the procedures to be observed in implementing the changes in conditions of employment set forth in Directive 1300-04 and concerning the appropriate arrangements for employees adversely affected by such changes.

WE WILL NOT issue and implement Directive 1300-04 without first notifying the National Treasury Employees Union, the exclusive representative of our employees, and affording it the opportunity to negotiate concerning the procedures to be observed in implementing the changes in conditions of employment set forth in Directive 1300-04 and concerning the appropriate arrangements for employees adversely affected by such changes.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute.

WE WILL, upon request, negotiate in good faith with the National Treasury Employees Union, the exclusive representative of our employees, concerning the procedures to be observed in implementing the changes in conditions of employment set forth in Directive 1300-04 and concerning the appropriate arrangements for employees adversely affected by such changes.

WE WILL notify the National Treasury Employees Union, the exclusive representative of our employees, of any intention to change our policies with regard to the conditions of emp