U.S. Federal Labor Relations Authority

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10:0415(71)CA - Treasury, IRS Center, Atlanta, GA and NTEU -- 1982 FLRAdec CA

[ v10 p415 ]
The decision of the Authority follows:

 10 FLRA No. 71
 Charging Party
                                            Case No. 4-CA-590
                            DECISION AND ORDER
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in an unfair labor practice under section 7116(a)(1) of the Federal
 Service Labor-Management Relations Statute (the Statute), and
 recommending that the case be dismissed in its entirety.  No exceptions
 were filed to the Judge's Decision.
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, and noting particularly the
 absence of exceptions, the Authority hereby adopts the Judge's findings,
 conclusions, and recommendations. /1A/
    IT IS HEREBY ORDERED that the complaint in Case No. 4-CA-590 be, and
 it hereby is, dismissed.  
 Issued, Washington, D.C., October 29, 1982
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
    Harry Mason, Esq.
    For the Respondent
    Regina M. Kane, Esq.
    Brenda Green, Esq.
    For the General Counsel
    Federal Labor Relations Authority
    Administrative Law Judge
                           Statement of the Case
    This is a proceeding 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. (hereinafter referred to as the Statute) and the Rules and
 Regulations of the Federal Labor Relations Authority, 5 C.F.R.Chapter
 XIV, Sec. 2410 et seq.
    Pursuant to a charge filed on September 9, 1980 by the National
 Treasury Employees Union (hereinafter called NTEU and Union) against the
 Department of the Treasury, Internal Revenue Service Center, Atlanta,
 Georgia (hereinafter called Respondent and IRS);  a First Amended Charge
 filed on September 23, 1980;  and a Second Amended Charge filed on
 October 3, 1980, the General Counsel of the Federal Labor Relations
 Authority by the Regional Director for Region 4 issued a Complaint and
 Notice of Hearing on October 20, 1980 alleging that Respondent violated
 Section 7116(a)(1) of the Statute by allegedly advising employee Rose
 Marie DeReimer, on three occasions, not to seek assistance from the
 Union without first consulting with Respondent.  IRS filed an Answer on
 November 5, 1980 admitting certain factual allegations and denying the
 legal conclusions.
    A hearing in this matter was conducted before the undersigned in
 Atlanta, Georgia.  The General Counsel of the Federal Labor Relations
 Authority and the IRS were represented and afforded full opportunity to
 be heard, to examine and cross-examine witnesses, to introduce evidence
 and to argue orally.  Briefs were filed and have been fully considered.
    Based upon the entire record in this matter, my observation of the
 witnesses demeanor, and upon my evaluation of the evidence, I make the
                             Findings of Fact
    NTEU is the exclusive collective bargaining representative for a unit
 consisting of, inter alia, Respondent's professional and
 non-professional employees at IRS' Atlanta Service Center.
    Employee DeReimer was a tax examiner in the Respondent's Collection
 Branch /1/ for two years, until June 29, 1980, when she was reassigned
 laterally to the Quality Review Staff with the encouragement of Quality
 Review Staff Manager Carol Thompson.  DeReimer's duties in the Quality
 Review Staff consisted of identifying technical errors of tax examiners
 in the Collection Branch and "flagging" such errors.  If a Collection
 Branch Manager disagreed with DeReimer's findings of error, the
 Collection Branch Manager took the matter up with DeReimer's Manager.
    In early July 1980, Manager Thompson advised the Quality Review Staff
 tax examiners, including Employee DeReimer, that Sue Harrington, then in
 IRS' management training program, would be acting as Quality Review
 Staff Manager while Manager Thompson was detailed out of the unit for
 six weeks.  DeReimer became increasingly dissatisfied with her
 assignment to the Quality Review Staff.  She had some differences with
 Acting Manager Harrington over the work DeReimer felt she was not
 receiving adequate training and she objected because after she
 identified errors in the matters she was reviewing, Harrington would
 delete them.
    The Union Shop Steward for the Quality Review Staff was Calvin Adams,
 the Union Steward for the Examination Branch.  Regina Smith was the
 Union Shop Steward for the Collection Branch and was physically located
 near DeReimer's desk.
    In late July DeReimer began to consider the prospect of seeking a
 lateral reassignment to the Collection Branch and informally discussed
 this matter with Union Steward Smith.  A. August 2, 1980 Meeting
    On August 2, 1980 Acting Manager Harrington asked Employee DeReimer
 to join her in the conference room of the Compliance Division.  During
 the course of meeting DeReimer and Harrington discussed DeReimer's
 dissatisfaction with her assignment to the Quality Review Staff, her
 feeling she wasn't receiving sufficient training and other problems she
 was having with respect to her work performance.  DeReimer advised
 Harrington that she was so unhappy that she was considering seeking
 reassignment out of Quality Review to her prior position in the
 Collection Branch and had been discussing this matter with her friend
 Regina Smith.  Harrington advised DeReimer that before she did anything
 final or made any final decisions she shall give her present job a try
 for a little longer and wait a few weeks for Carol Thompson to return.
 Harrington encouraged DeReimer to discuss the problems with Thompson
 because they might be able to work something out.
    I have credited Harrington's version of this meeting rather than
 DeReimer's.  Harrington appeared a more credible witness and her version
 seemed more reasonable and consistent with the other facts and
 circumstances.  Thus, DeReimer's testimony that she told Harrington that
 she, DeReimer, had been talking to Regina Smith, Union Steward, about
 transferring back to the Collection Branch;  that Harrington replied
 that DeReimer should not go to the Union first but should talk to the
 IRS first about her problems;  that there are some aspects that
 management could handle;  and that the Union should not get involved, is
 discredited.  Regina Smith, in addition to being a Shop Steward, is a
 personal friend of DeReimer's and DeReimer's testimony indicates that
 she went to talk to Smith, not because she was a Union Shop Steward /2/
 , but because DeReimer and Smith were personal friends and Smith had
 extensive knowledge concerning procedures for transferring.  In this
 regard, it is noted that Harrington had just transferred to the I-95
 Annex, was informed that Calvin Adams was the Union Steward for the
 Quality Review Staff, was, at that time, unaware that Smith was a Union
 Steward, and had seen Smith and DeReimer, presumably as friends,
 lunching and talking together.
    In light of all of the foregoing, in addition to the demeanor of the
 witnesses, I credit Harrington's version of the August 2 meeting.  B.
 August 11, 1980 Meeting
    Several subsequent meetings occurred between Harrington and DeReimer
 during which Harrington pointed out what she felt were shortcomings in
 DeReimer's work performance.
    On August 11, 1980, at a meeting, Harrington advised DeReimer that if
 DeReimer did not improve on some of her alleged shortcoming and if the
 problems persisted Harrington would have to start documenting DeReimer's
 shortcomings.  DeReimer was so upset by the conversation that without
 advising Harrington, DeReimer left her unit to talk to Regina Smith, who
 advised DeReimer to go to the nurse's station.  The nurse advised
 Harrington that DeReimer was in the nurse's station.  DeReimer then
 returned to her station and advised Harrington that she, DeReimer, was
 going to see Union Steward Calvin Adams.  /3/ C. August 13 Meeting and
 the August 15 Memorandum:
    On August 13 DeReimer, at Adams' request, reduced to writing her
 version of the August 2 meeting.  On that same day, at Adams' request,
 DeReimer, Thompson, and Adams met in the Conference Room to discuss
 Thompson's work expectations of DeReimer.  Thompson read verbatim
 portions of an eight-item Expectation Memorandum, elaborating on each
 item.  The Fifth Item states:
    5.  If you have a problem other than work, let me know at once.
          I may not need to know the problem and I may not be able to
       solve the problem, but I do expect you to inform me that you do
       have a problem and that you are going to talk to either the Union
       steward or the nurse.  Problems that affect your performance
       concern me as a manager.
    DeReimer testified that Harrington stated that if DeReimer "had a
 personal problem . . . I should confront her first and that she
 necessarily didn't want to know what the problem was but if I had one,
 let her know before I went to the Union or went to the nurse or went out
 of the unit . . . "
    On August 14 DeReimer was asked to sign the Expectation Memorandum
 dated that day and a copy of that Memorandum was placed in DeReimer's 7B
 File.  /4/
                        Discussion and Conclusions
    The credited version of the August 2, 1980 meeting does not contain
 any anti-Union comments by Harrington nor does it contain any expression
 that DeReimer should limit her contacts with Union or hesitate to seek
 Union assistance.
    The language of the August 13, 1980 meeting and the Expectation
 Memorandum, which is alleged to be unlawful, in effect merely requires
 DeReimer to advise her superior when she is leaving the work area.
 DeReimer was neither forbidden to go to the Union nor was she
 discouraged from going to the Union;  rather she was instructed that
 when leaving the unit area, whether it be to go to the Union or the
 nurse, she was to go advise her superior.  Such a requirement is merely
 an attempt by management to keep track of the location of employees
 during working hours.  Such a limitation, absent additional coercion or
 interference, can hardly be found to be violative of Section 7116(a)(1)
 of the Statute.  Cf. Oklahoma City Air Logistics Center, 2 FLRA No. 13
    In light of the foregoing it is concluded that Respondent did not
 violate Section 7116(a)(1) of the Statute.  Accordingly, I recommend the
 Authority adopt the following:
    It is hereby Ordered that the complaint in Case No. 4-CA-590 be, and
 hereby is, dismissed.
                                       SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 Dated:  July 1, 1981
         Washington, DC
    /1A/ See Department of Defense, Department of the Air Force, Warner
 Robins Air Logistics Center, Robins Air Force Base, Georgia, 7 FLRA No.
 104 (1982);  Army and Air Force Exchange Service (AAFES), Rocky Mountain
 Area Exchange No. 4125, Fort Carson, Colorado, 8 FLRA No. 94 (1982).
 --------------- FOOTNOTES$ ---------------
    /1/ Respondent's Compliance Division is composed of three branches,
 the Examination Branch, the Collection Branch, and Quality Review Staff.
  The incidents in this case took place at Respondent's location at the
 I-85 Annex.
    /2/ At this time DeReimer was confused and was unaware that Calvin
 Adams was her Shop Steward.  She apparently thought that Regina Smith,
 who had been her Shop Steward when DeReimer was in Collections, was
 still her Shop Steward.
    /3/ Smith advised DeReimer that her Shop Steward was Calvin Adams.
    /4/ Apparently a personnel file.