Department of the Treasury, Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri (Respondent) and National Treasury Employees Union and National Treasury Employees Union, Chapter 66 (Charging Parties)

[ v57 p126 ]

57 FLRA No. 33

DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
KANSAS CITY SERVICE CENTER
KANSAS CITY, MISSOURI
(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION

AND

NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 66
(Charging Parties)

DE-CA-90628
DE-CA-90850

_____

DECISION AND ORDER

May 8, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the Respondent, and a cross-exception filed by the Charging Party. The General Counsel (GC) and the Charging Party filed oppositions to the Respondent's exceptions. No opposition was filed to the Charging Party's cross-exception.

      The complaint in DE-CA-90628 alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by bypassing the Union; the complaints in DE-CA-90628 and DE-CA-90850 allege that the Respondent violated § 7116(a)(1) and (5) of the Statute by refusing to bargain with the Union over changes in shifts for unit employees. The Judge concluded that the Respondent violated the Statute as alleged and ordered status quo ante relief.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision. [ v57 p127 ]

II.     Background

      The Respondent notified the Union that it intended to discontinue the night shift for some organizational components during non-peak months and to assign affected night-shift employees to different shifts. The Union requested to negotiate over the change, but the Respondent stated that the change was "covered by" Article 15, Section 2A of the parties' agreement and refused to bargain. [n1] 

      In addition, the Respondent solicited volunteers from among unit employees to assist in developing seating arrangements for night-shift employees who would be moving to the day shift. The Respondent scheduled meetings with the volunteers and invited the Union to attend the meetings. The Union President declined to attend.

III.     Judge's Decision

      To resolve the Respondent's covered by defense, the Judge applied the framework established in United States Dep't of HHS, Soc. Sec. Admin., Balt., Md., 47 FLRA 1004 (1993) (SSA). Applying the first prong, the Judge found that the matter of shift changes was not expressly contained in Article 15 of the parties' agreement.

      Applying the second prong, the Judge considered whether shift changes are so commonly considered an aspect of reassignments, as defined by Article 15, Section 1B, that they are inseparably bound up with and plainly an aspect of such reassignments. The Judge noted that Article 15, Section 1B defines reassignment as a permanent change in an employee's position or a permanent change in the [post of duty], and defines position as a set of duties requiring the full or part-time employment of one (1) person, as described in the position description. Judge's Decision at 16. The Judge found that the shift changes did not change employees' positions or posts of duty and, therefore, were not within the definition of reassignment in Article 15.

      The Judge stated that analysis of the third prong of the SSA framework - involving the parties' subjective intent - is appropriate only if, after analyzing the first two prongs, it is difficult to determine whether the matter is an aspect of matters already negotiated." Id. at 13. The Judge found that application of the first two prongs of the SSA framework demonstrated that the matter of shift changes were not an aspect of matters already negotiated. Accordingly, he found it unnecessary to apply the third prong of SSA and he refused to consider evidence offered by the Respondent to show that the parties "agreed orally" that Article 15 applied to shift changes. Id. at 17. The Judge concluded that the shift changes were not "covered by" Article 15.

      The Judge also concluded that the Respondent bypassed the Union and, thereby, violated § 7116(a)(1) and (5) of the Statute. In this connection, the Judge found that the Respondent unilaterally assembled a team of unit employees to discuss changes in conditions of employment, and that the Respondent met with the team members and treated them as employee representatives. The Judge determined that the Respondent invited the Union to attend the meetings, "but only as an additional participant in the exercise." Id. at 19.

      The Judge found that the change in shifts involved the number of employees assigned to tours of duty, within the meaning of § 7106(b)(1) of the Statute. In determining whether the Respondent was required to bargain over the substance, or only the impact and implementation, of its decision, the Judge noted that the parties had entered into a partnership agreement that had been interpreted by an arbitrator as constituting an election by the Respondent to bargain over § 7106(b)(1) matters, and that the Authority had denied Respondent's exceptions to the arbitrator's award. [n2] 

      The Judge acknowledged that, under Article 43, Section 4A.8 of the parties' agreement, an arbitrator's award "shall be final, binding and, except for expedited awards, precedential." Id. at 23. However, the Judge stated that there was no claim that the award was "entitled to any greater weight than its power to persuade." Id. at 24. Taking a "fresh look" at the partnership agreement, the Judge concluded that the Respondent had not elected to bargain over § 7106(b)(1) matters. Id. The Judge stated that even if the partnership agreement constituted an election, Authority decisions suggested that such elections "may be enforceable as contracts but not necessarily as statutory `elections,'" and that breaching such agreement "would not necessarily constitute an unfair labor practice unless it were alleged and proved to constitute a repudiation of the agreement." Id. at 28-29.

      The Judge evaluated the GC's and Charging Party's request for a status quo ante bargaining order "pursuant to the criteria set forth in Federal Correctional [ v57 p128 ] Institution, 8 FLRA 604, 606 (1982) (FCI)." Judge's Decision at 29. Applying those criteria, the Judge found that status quo ante relief was appropriate, and he directed the Respondent to bargain "to the extent required by law" over the shift changes. Id. at 35.

IV.     Positions of the Parties

A.     Respondent's Exceptions

      The Respondent contends that the Judge erred in refusing to consider bargaining history evidence, which the Respondent asserts supports a conclusion that the disputed shift changes are "covered by" Article 15, Section 2A. In this connection, the Respondent asserts that, in agreeing to the definition of "reassignment" in Article 15, Section 1, the parties expressly discussed "realignments[,]" and the Agency's "clear objective" was to "allow maximum employee and organizational movement, with a minimum of time consuming local negotiations." Exceptions at 12-13. The Respondent asserts that it would be "nonsensical" to conclude that the parties "reserved more rights to negotiate over within [post of duty] changes than moves outside of commuting areas." Id. at 13 n.1.

      In addition, the Respondent contends that the Judge erred by finding that the Respondent bypassed the Union. According to the Respondent, a bypass can occur only when an agency deals directly with unit employees on matters that are otherwise bargainable with their union. In this case, according to the Respondent, the disputed shift changes were not bargainable with the Union because they were "covered by" Article 15. Further, the Respondent contends that it satisfied its obligation under Article 15, Section 4 to "work with" the Charging Party "in an effort to minimize the adverse impact of the shift change." [n3] Id. at 16.

B.     GC's Opposition to Respondent's Exceptions

      The GC argues that it was unnecessary for the Judge to consider the bargaining history of Article 15. The GC contends that, "if any article covered the changes in the shifts," it would be Article 23, which reserves the Union's right to negotiate over shift changes. [n4] GC's Opposition at 4. The GC also contends that the Judge did not err in finding that the Respondent bypassed the Union. In this regard, the GC asserts that the Respondent cannot rely on Article 15 as a defense because that provision does not address "direct dealing with unit employees concerning seating arrangements due to changes in shifts under Article 23." Id.

C.     Charging Party's Opposition and Cross-Exception

      In its opposition, the Charging Party contends that it was unnecessary for the Judge to consider evidence regarding the parties' bargaining history, but that, even if the Judge had considered such evidence, "his determination would not have changed." Charging Party's Opposition and Cross-Exception at 4. In this connection, the Charging Party asserts that the record evidence demonstrates that, during bargaining, "the parties did not intend that changes in employees' tours of duty would be 'covered by' Article 15." Id. at 4 (emphasis in original). The Charging Party also asserts that the Respondent's exception on the bypass issue should be rejected because it "is based solely on Respondent's claim that it was not required to bargain with the Union over the changes in employees' tours of duty." Id. at 5.

      In its cross-exception, the Charging Party argues that the Judge erred in recommending a status quo ante remedy under the criteria set forth in Fed. Corr. Inst. According to the Union, the Judge should have applied the criteria in United States Dep't of Labor, Wash., D.C., 38 FLRA 899 (1990) (DOL), because consistent with the arbitration award concerning the partnership agreement, the Respondent was obligated to bargain over the substance, not only the impact and implementation, of its decision to change shifts. The Charging Party argues where, as here, parties have agreed that arbitral awards are precedential, this precedential value should extend to actions before the Authority where, as here, the requirements of collateral estoppel are met.

V.     Analysis and Conclusions

A.     The Judge did not err by finding that shift changes are not "covered by" the parties' agreement.

      In resolving a defense that a change is "covered by" a collective bargaining agreement, the Authority examines, under the first prong, whether the subject matter of the change is expressly contained in the agreement. See SSA, 47 FLRA at 1018. If the provision does not expressly contain the matter, then the Authority will determine, under the second prong, whether the subject is inseparably bound up with, and thus is plainly an [ v57 p129 ] aspect of, a subject covered by the contract. See id. Subsequent to the Judge's decision, the Authority clarified that there is no separate, "third prong" of the framework and that a determination of the parties' intent, including an examination of bargaining history, is an "integral component" of assessing the second prong. United States Customs Serv., Customs Mgmt. Ctr., Miami, Fla., 56 FLRA 809, 814 (2000) (Customs).

      The Judge stated that the second prong does not take into account subjective intent of the parties and that the third prong did not apply in this case. Consistent with Customs, the Judge should have considered evidence regarding the parties' bargaining history in determining whether the shift changes were "covered by" Article 15. However, the Judge did not preclude the parties from introducing evidence regarding bargaining history. See Judge's Decision at 18. Therefore, the record permits us to determine whether the shift changes were "covered by" Article 15. We note, in this connection, that the Respondent does not except to the Judge's findings regarding the first prong of the "covered by analysis," or the second prong, absent the consideration of bargaining history. [n5] 

      The Respondent argues that bargaining history supports its argument that Article 15, Section 2A was intended to apply to more than the reassignments defined in Section 1, and that, during bargaining, it set forth its objective to eliminate local negotiations with regard to reassignments and realignments. In this connection, the Respondent asserts that it intended Article 15, Section 2A to apply to "more general organizational moves or realignments." Exceptions at 12. Record evidence supports the assertion regarding organizational moves and realignments. See Tr. at 423-28, 447-52, and 478-79. Nevertheless, none of the record evidence cited by the Respondent supports a conclusion that the parties intended Article 15, Section 2A to apply to shift changes[n6] 

      Further, as noted by the GC, Article 23 is relevant to this issue. In particular, Article 23 provides that, prior to changing employees' hours, the Respondent will notify the Union and give it an opportunity to bargain over those changes. There is no record evidence that, in agreeing to Article 15, the Respondent intended to modify Article 23 in any way. An objective comparison of Article 15, which does not address shift changes, with Article 23, which does, supports a conclusion that the parties did not contemplate that Article 15 would preclude bargaining over shift changes.

      Finally, the Respondent's argument that it would be nonsensical for the parties to have reached agreement over major changes (such as reassignments and geographic movements of employees) without also doing so over more minor changes (such as shift changes) is unpersuasive. As the Judge found, there is no particular reason that the parties would have refrained from agreeing to matters governing reassignments in the absence of a similar agreement regarding shift changes. We note that, in Treasury, the Authority upheld a judge's determination that the bargaining history of Article 15 does not demonstrate an intention by the parties to include such matters as local moves of employees. 56 FLRA at 911-12.

      For the foregoing reasons, we conclude that the Respondent has not demonstrated that the shift changes were "covered by" Article 15 of the parties' agreement. Accordingly, we deny the exception.

B.     The Judge did not err by finding that the Respondent bypassed the Union.

      "Agencies unlawfully bypass an exclusive representative when they communicate directly with bargaining unit employees concerning grievances, disciplinary actions and other matters relating to the collective bargaining relationship." United States Dep't of Justice, Bureau of Prisons, Fed. Corr. Inst., Bastrop, Tex., 51 FLRA 1339, 1346 (1996) (United States Dep't of Justice) (citation omitted). Agency negotiations with unit employees regarding conditions of employment "inherently undermine[] the status of the Union." Air Force Accounting and Fin. Ctr., Lowry Air Force Base, Denver, Colo., 42 FLRA 1226, 1239 (1991). Such conduct violates § 7116(a)(1) and (5) of the Statute. See United States Dep't of Justice, 51 FLRA at 1346.

      It is undisputed that the Respondent communicated and negotiated directly with unit employees regarding a condition of their employment: seating arrangements for the day shift. The Respondent alleges that it did not bypass the Union because: (1) it was not obligated to bargain with the Charging Party over the shift changes; and (2) it satisfied its contractual obligation under Article [ v57 p130 ] 15, Section 4 to "work with" the Union to "minimize the adverse impact of the shift change" by inviting the Union to attend the meetings. Exceptions at 16.

      The Respondent's first argument is based on its claim that the shift changes were "covered by" Article 15, which we rejected above. Accordingly, this argument does not provide a defense to the bypass.

      The Respondent's second argument is that Article 15, Section 4 of the parties' agreement permitted it to take the disputed actions. Where a respondent asserts that a contractual provision specifically permitted it to take a disputed action, the Authority applies the doctrine set forth in IRS, Wash., D.C., 47 FLRA 1091, 1103 (1993) (IRS). Under that doctrine, the Authority determines whether the judge's interpretation of the parties' agreement is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the Federal courts. See, e.g., United States Dep't of Justice, Immigration and Naturalization Serv., Wash., D.C., 52 FLRA 256, 261 (1996).

      Article 15, Section 4A of the parties' agreement provides, in pertinent part, that "[t]he parties jointly commit to work together in minimizing the adverse impact on employees involuntarily reassigned under this article." Judge's Decision at 4. This provision does not address either meetings between management representatives and unit employees or the Union's right to act as the representative of unit employees. The Respondent points to no record evidence that would support a conclusion that this provision was intended to permit the Respondent to bypass the Union. Accordingly, this argument does not provide a defense to the bypass.

      For the foregoing reasons, we deny the exception.

C.     The Judge did not err by refusing to adopt an arbitration award concerning the Respondent's obligation to bargain over § 7106(b)(1) subjects.

      There is no contention in this case that the partnership agreement -- even as interpreted by the arbitrator -- results in a Statutory rather than a contractual obligation to bargain over § 7106(b)(1) subjects. There likewise is no contention that the Respondent violated the Statute by repudiating the partnership agreement, and the Respondent makes no claim that the partnership agreement provides a defense to its actions, under either SSA or IRS. Therefore, without regard to whether the Union may have an enforceable contractual right to bargain over the shift changes, it was unnecessary for the Judge to interpret the partnership agreement in order to resolve the complaint or to provide a remedy for the Statutory violations he found. [n7] As a result, even if the Judge erred in interpreting the agreement, that error does not provide a basis for reversing his decision. Accordingly, we deny the cross-exception.

VI.     Order

      Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Treasury, Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, shall:

      1.     Cease and desist from:

           (a)     Changing tours of duty (TODs) and shifts of unit employees in the Notice Review, Data Conversion, and Code & Edit sections, without first bargaining with the National Treasury Employees Union, Chapter 66, concerning the impact and implementation of those changes.

           (b)     Bypassing the National Treasury Employees Union, Chapter 66, and dealing directly with bargaining unit employees concerning their conditions of employment.

           (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)     Rescind the changes in TODs and shifts in the Notice Review, Data Conversion, and Code & Edit sections, effected on August 1, 1999, October 1, 1999, and January 1, 2000, respectively.

           (b)     Offer to reinstate employees who resigned, retired, or were reassigned from the Notice Review, Data Conversion, or Code & Edit sections rather than continue employment in the changed TODs and shifts in those units.

           (c)     Make all employees whole to the extent they have suffered any reduction of pay and/or benefits as a result of the implementation of changes in TODs and shifts.

           (d)     Notify the National Treasury Employees Union, Chapter 66 of any intent to change the TODs [ v57 p131 ] and shifts of affected employees in the Notice Review, Data Conversion, and Code & Edit sections, and, upon request, negotiate to the extent required by law over those changes.

           (e)     Post at its facilities where bargaining unit employees represented by the National Treasury Employees Union and Chapter 66 are located, copies of the attached Notice on forms reproduced from those furnished by the Denver Regional Director of the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director of the Kansas City Service Center, and they shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily placed. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

           (f)     Pursuant to section 2423.41(e) of the Authority's Regulations, within 30 days from the date of this Order, notify the Regional Director, Denver Regional Office, Federal Labor Relations Authority, in writing, as to what steps have been taken to comply.


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Department of the Treasury, Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

We hereby notify employees that:

WE WILL NOT implement changes in tours of duty (TODs) or shifts of bargaining unit employees in our Notice Review, Data Conversion, and Code & Edit sections without first bargaining with the National Treasury Employees Union, Chapter 66, concerning the impact and implementation of those changes.

WE WILL NOT bypass the National Treasury Employees Union, Chapter 66 by dealing directly with bargaining unit employees in the Notice Review Section regarding solicitation of volunteers to devise seating arrangements.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL rescind the changes in the TODs and shifts of employees in the Notice Review, Data Conversion, and Code & Edit sections, effected on August 1, 1999, October 1, 1999, and January 1, 2000, respectively.

WE WILL offer to reinstate employees who resigned, retired, or were reassigned from the Notice Review, Data Conversion, and Code & Edit sections because of the changes implemented in their TODs and shifts.

WE WILL make all employees whole to the extent they have suffered any reduction of pay and/or benefits as a result of the implementation of the changes in TODs and shifts in the Notice Review, Data Conversion, and Code & Edit sections.

WE WILL notify the National Treasury Employees Union, Chapter 66 of any intent to change the TODs and shifts of affected employees in the Notice Review, Data Conversion, and Code & Edit sections, and, upon request, negotiate to the extent required by law over those changes.

      ________________________
(Respondent/Activity)

Dated:__________ By:_______________________

      (Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Denver Regional Office, whose address is: 1244 Speer Boulevard, Suite 100, Denver, CO 80204, and whose telephone number is: (303) 844-5224.


File 1: Authority's Decision in 57 FLRA No. 33
File 2: ALJ's Decision


Footnote # 1 for 57 FLRA No. 33 - Authority's Decision

   Article 15, Section 2A of the parties' agreement sets forth procedures that apply "[f]or reassignments within a post of duty." Respondent Exhibit 1 at 44.


Footnote # 2 for 57 FLRA No. 33 - Authority's Decision

   The Agency's exceptions were denied in United States Dep't of the Treasury, IRS, Wash., D.C., 56 FLRA 393 (2000). The Agency's request for reconsideration of the Authority's decision was denied in United States Dep't of the Treasury, IRS, Wash., D.C., 56 FLRA 935 (2000).


Footnote # 3 for 57 FLRA No. 33 - Authority's Decision

   Article 15, Section 4A provides, in pertinent part: "The parties jointly commit to work together in minimizing the adverse impact on employees involuntarily reassigned under this article. . . ." Judge's Decision at 4.


Footnote # 4 for 57 FLRA No. 33 - Authority's Decision

   Article 23, entitled "Hours of Work," provides, in pertinent part: "A change in the administrative workweek, and changes in the regularly scheduled administrative workweek are considered changes in conditions of employment for purposes of the notice requirement of Article 47 of this Agreement." Attachment to GC's Opposition. Article 47 establishes ground rules for mid-term bargaining between the parties. See id.


Footnote # 5 for 57 FLRA No. 33 - Authority's Decision

   We note that the Authority has upheld a judge's determination that Article 15 of the partie