42:0137(7)CA - - Treasury, IRS, Louisville District, Louisville, KY and NTEU - - 1991 FLRAdec CA - - v42 p137
[ v42 p137 ]
The decision of the Authority follows:
42 FLRA No. 7
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
NATIONAL TREASURY EMPLOYEES UNION
DECISION AND ORDER
September 12, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel and the Charging Party filed oppositions to the exceptions.
The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to negotiate over a decision to eliminate the availability of General Services Administration (GSA) vehicles to revenue officers for transportation to perform their work. The Judge found that the Respondent violated section 7116(a)(1) and (5) of the Statute, as alleged. The Judge found it unnecessary to determine whether certain proposals made by the Union were negotiable because the complaint allegations did not address that issue.
Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommendations only to the extent consistent with this decision. For the reasons set forth below, we find that the General Counsel has not established that there was a change in the condition of employment at issue. Therefore, we shall dismiss the complaint.
The Charging Party, National Treasury Employees Union (NTEU), is the exclusive representative of the revenue officers employed by the Respondent, Louisville District, Internal Revenue Service. Chapter 25 is the local unit of NTEU operating in the Louisville District. For over 20 years, the Respondent has assigned cars it obtained from the GSA to some of its revenue officers. The cars are used in making tax collections at various places where taxpayers' assets might be found. In January 1989 approximately 17 of the 90 revenue officers assigned to the Respondent had GSA cars. GSA's Federal Property Management Regulations suggest, as a "utilization guideline" agencies may use in determining whether a full-time passenger car assignment is necessary, that the assignee should drive the car at least 12,000 miles a year. 41 C.F.R. § 101-39.301.(1)
Michael Clark became Collection Field Branch Chief for the Louisville District on January 2, 1989. Almost immediately, it was brought to his attention that a number of the 17 assigned GSA cars were being driven less than 12,000 miles per year. Clark conducted a review of the mileage accumulated over the past year and determined that nine of the cars were underutilized. He decided to return these cars to GSA, and notified the Union of his decision. At the hearing, Clark was unable to answer how many miles a year the cars had traveled prior to his decision, and he stated that he was unable to recall, without his paperwork, the details of what led him to conclude that the cars were being driven less than 1,000 miles per month or 12,000 miles per year. Transcript at 49.
Revenue officer Larry Tompkins, president of Chapter 25, asked to bargain over the decision to remove the cars, and also submitted some specific proposals addressing the issue. Clark scheduled a meeting for February 17, 1990, to brief Chapter 25 on the situation. At the meeting, Clark told Tompkins that GSA guidelines "required" that car assignments be rescinded from revenue officers who did not meet the 12,000-mile minimum. ALJ Decision at 3. Clark expressed the Respondent's position that withdrawing the cars did not change a condition of employment and was not negotiable. Clark showed Tompkins a memo containing the license numbers of nine cars that would be taken back because they did not meet the "utilization guidelines." Id. Ultimately, seven of the nine were returned to GSA. Officers whose cars were taken back were expected to use their own cars for Government business, with reimbursement according to the mileage reimbursement rate established by GSA.
III. Administrative Law Judge's Decision
The Judge found that providing the cars was a condition of employment, and that the decision to discontinue the assignment of cars to seven officers was a change in that condition of employment. He found further that the Union had not waived its right to bargain over the change, either by statements made by its local Union president or by provisions of the parties' collective bargaining agreement. Finally, the Judge found it unnecessary to pass on the negotiability of proposals made by the Union in response to the Respondent's action.
The Judge based his finding that the system of assigning cars was a condition of employment on Authority precedent. Citing National Treasury Employees Union, Chapter 153 and Department of the Treasury, U.S. Customs Service, 21 FLRA 1116, 1122 (1986), he noted that the Authority has found negotiable the subject of providing employees with a government vehicle, to the extent that the proposal involves the transportation of employees who are required to travel from one work site to another but is otherwise unrelated to the performance of the agency's work. Therefore, he concluded that there would be a duty to bargain over any decision to change the Respondent's system of assigning cars.
The Judge's determination that withdrawal of the assigned cars from seven officers constituted a change in a condition of employment was based on his finding that assignment of cars had not been contingent on the mileage guideline in the past. He noted that "the record is not as fully fleshed out as one might hope for," observing further that:
the General Counsel rested on a bare set of facts that establishes a longstanding practice of assigning GSA cars and that clearly supports the inference that before January 1989 Louisville District permitted employees who had been assigned GSA cars to retain those cars without regard to the 12,000-mile guideline.
ALJ Decision at 7.
After analyzing the requirements of the burden of proof necessary for the General Counsel to establish a prima facie case, the Judge concluded that:
[a]ssuming . . . it is necessary for the record to show affirmatively that Louisville District's relevant past practice did not make continued assignment of GSA cars contingent on the mileage guideline, I infer so from the whole record. I do this without any great degree of certainty. Nor am I necessarily convinced that the reasons behind this inference . . . would support any burden of persuasion more demanding than that of preponderance. I simply conclude that the existence of this set of facts is more probable than its nonexistence.
Id. at 8.
The Judge found that the practice in effect when Clark took over permitted officers who had been assigned GSA cars to retain the cars without respect to the 12,000-mile guideline. Applying the requirements for the establishment of conditions of employment by past practice, as set out in Norfolk Naval Shipyard, 25 FLRA 277, 286 (1987), the Judge found that the practice had been exercised consistently for an extended period of time with management's knowledge and consent.
As to the Respondent's arguments that the Union was estopped from asserting that a bargaining obligation arose, the Judge declined to rely on a statement allegedly made by the local Union president that the matter was not negotiable, and further held that the parties' negotiated agreement did not constitute a clear and unmistakable waiver of the Union's right to bargain. The Judge also rejected, based on Authority precedent, the Respondent's argument that no obligation to bargain arises until a union submits a negotiable proposal regarding such a change.
Finally, the Judge declined to review the negotiability of Union proposals made in connection with the request to bargain. The Judge recognized that in one case the Authority made a negotiability determination regarding a proposal even though the resolution of the negotiability dispute was not necessary to determine whether an unfair labor practice had been committed. U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Fitchburg, Massachusetts District Office, Fitchburg, Massachusetts, 36 FLRA 655 (1990) (Fitchburg). The Judge noted that in Fitchburg, in contrast to this case, the parties had both addressed the negotiability issues before the Judge, who viewed a negotiability determination as a necessary predicate to deciding the unfair labor practice issue. In this case, where none of the parties argued that a determination of the negotiability issues was necessary to decide the unfair labor practice issue and where the complaint did not allege the failure to bargain over the proposals as an additional unfair labor practice, the Judge concluded that he had no jurisdiction to resolve the negotiability issues.
IV. Positions of the Parties
The Respondent excepts to the Judge's finding that continued use of GSA cars without regard to the 12,000-mile standard set forth in the utilization guidelines was a condition of employment and that there was a change in that condition of employment. The Respondent argues, among other things, that it did not have the authority to establish the use of government-owned vehicles as a condition of employment in a manner inconsistent with the utilization guidelines. It also argues that the General Counsel did not establish the existence of a past practice granting continued use of the cars without regard to the 12,000-mile guideline or the parties' collective bargaining agreement. The Respondent further contends that the Judge's determination that a past practice was established was based on speculation and is unsupported by the record. In sum, the Respondent argues that there is no evidence that the utilization guidelines were ignored in the past, and, further, that as far as the record shows, the cars were withdrawn according to established standards. Thus, the Respondent asserts that its decision to withdraw the cars was consistent with its established practice of basing car assignments on the 12,000-mile standard set forth in the utilization guidelines.
The Respondent also excepted to the Judge's refusal to review the negotiability proposals made by the Union.
The General Counsel and the Charging Party each filed an opposition to the Respondent's exceptions, supporting the findings of the Judge.
V. Analysis and Conclusions
In finding that the Respondent violated the Statute by unilaterally changing the system of assigning cars, the Judge concluded that the record is sufficient to support a finding that the Respondent's past practice was to allow continued use of the GSA cars without regard to the mileage standard in the guidelines. While we agree with the Judge, for the reasons he stated, that the Respondent had the authority to establish a condition of employment in the use of government-owned vehicles, we do not agree that the record supports a finding of a past practice of allowing continued use of cars without regard to the mileage standard.
The record shows, as alleged, that the cars were withdrawn from officers who were driving them less than 12,000 miles per year. The Judge found that the system of assignment of cars was a condition of employment in the circumstances of this case. For the purposes of this case, we assume, without deciding, that this condition of employment is a mandatory subject of bargaining. In order to find that the Respondent's action constituted a change in a condition of employment, it must be established that the Respondent's past practice had been to permit the continued use of GSA cars by officers regardless of whether they met the 12,000-mile guideline. To find that a condition of employment has been established by past practice, as noted by the Judge, there must be a showing that the practice was consistently exercised for an extended period of time, with the agency's knowledge and express or implied consent. Norfolk Naval Shipyard, 25 FLRA at 286.
We cannot find on the record in this case that the Respondent had an established past practice of permitting the continued use of GSA cars without regard to the utilization guidelines. Thus, the record does not establish whether in the past anyone who had driven less than 12,000 miles per year had been allowed to continue using a GSA car or, on the other hand, whether the use of a car was discontinued under such circumstances. In fact, due to the paucity of the record, which the Judge described as "not as fully fleshed out as one might hope for," ALJ Decision at 7, we cannot tell whether in the past anyone assigned a car in fact ever drove less than 12,000 miles per year. For example, the record neither shows mileage figures for drivers, which could have established some of the facts necessary to determine the past practice, nor does it contain details of the 12-month survey taken by Clark. Specifically, there was no evidence bearing on the prior driving history of the drivers of the seven cars returned to GSA. Finally, there was no testimony to establish the Respondent's knowledge of long-term car usage that did not meet the standard set by the utilization guidelines and set forth in the parties' agreement. In view of the foregoing, we conclude that the General Counsel has not established that there was a practice of allowing drivers to continue to use assigned cars regardless of the mileage they drove. Therefore, the General Counsel has failed to make a prima faci