10:0653(107)CA - IRS Los Angeles District and NTEU -- 1982 FLRAdec CA

 10 FLRA No. 107
 
 INTERNAL REVENUE SERVICE
 LOS ANGELES DISTRICT
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 8-CA-864
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record in this case, including the
 parties' stipulation of facts, accompanying exhibits, and briefs
 submitted by the Respondent and the General Counsel, /1/ the Authority
 finds:
 
    The complaint herein alleges, in substance, that the Respondent
 violated section 7116(a)(1) and (5) of the Federal Service
 Labor-Management Relations Statute (the Statute) /2/ when it
 unilaterally changed the starting and quitting times of four field
 agents in its Employee Plans/Exempt Organization (EP/EO) Division,
 without providing the employees' exclusive representative an opportunity
 to negotiate concerning the change.
 
    The Charging Party, National Treasury Employees Union (NTEU),
 exclusively represents certain employees of the Internal Revenue
 Service, Los Angeles District (the Respondent).  On may 21, 1979, the
 Respondent issued a memorandum updating the official hours of duty in
 headquarters and outlying posts of duty within the Los Angeles District.
  The memorandum stated that the official hours of duty in headquarters
 were 8:00 a.m. to 4:30 p.m. (4:45 in outlying areas), and also provided
 that supervisors could approve requests for deviations from official
 starting and quitting times with the concurrence of the Division Chief.
 The complaint concerns four field agents employed in the Respondent's EO
 section of the EP/EO Division who had for varying periods of time (three
 and a half years, one and a half years, sixteen and ten months,
 respectively) deviated from the official hours of duty on those days
 when they worked in the headquarters office.  The agents in question
 worked hours of either 7:00 a.m. to 3:30 p.m. or 7:30 a.m. to 4:00 p.m.
 All had been doing so with either the express permission or knowledge of
 their respective supervisors.  In addition, during the period from early
 1978 through mid 1980, three other field agents in the EP/EO Division
 had been given express permission by either a supervisor in the Division
 or the former Chief of the EP/EO Division to work hours other than those
 established as the official hours of duty on those days when they worked
 in the office.
 
    By memorandum dated October 10, 1980, the Respondent's Chief of the
 EP/EO Division informed NTEU's steward that he intended to change the
 tours of duty of the four field agents to 8:00 a.m. to 4:30 p.m.
 effective November 2, 1980.  Thereafter, NTEU requested bargaining
 concerning the substance, impact and implementation of the Respondent's
 proposed change in duty hours and submitted a number of proposals.  The
 position taken by the Respondent with respect to NTEU's proposals was
 that the substance of the change was not negotiable.  On December 19,
 1980, the Respondent sent each of the four field agents a memo stating
 that a change in starting and quitting times would be implemented on
 January 5, 1981.  Since January 5, 1981, the four agents have worked the
 hours of 8:00 a.m. to 4:30 p.m. on those days when they worked in the
 headquarters office.  The parties never met to discuss the Respondent's
 proposed change in the employees'work hours and never reached agreement
 with respect thereto.
 
    In U.S. Customs Service, Region V, New Orleans, Louisiana, 9 FLRA No.
 15 (1982), the Authority found, in pertinent part, that the activity
 violated section 7116(a)(1) and (5) of the Statute by not affording its
 employees' exclusive representative the opportunity to negotiate fully
 on the decision to change the starting and quitting times of a
 previously existing shift.  In so finding, the Authority, citing
 National Treasury Employees Union, Chapter 66 and Internal Revenue
 Service, Kansas City Service Center, 1 FLRA 926 (1979), noted that a
 decision to change the starting and quitting times of employees on an
 established shift is a condition of employment and that the record, as
 here, failed to establish that the effectuated change was determinative
 of the numbers, types or grades of employees or positions assigned to a
 work project or tour of duty, so as to render the matter negotiable only
 at the election of the agency under section 7106(b)(1) of the Statute.
 /3/ Thus, and for the reasons set forth in U.S. Customs Service, the
 Respondents position-- i.e., that the substance of its decision to
 change the starting and quitting times of the four employees herein is
 not within its duty to bargain-- cannot be sustained.  Accordingly, the
 Authority finds that the Respondent violated section 7116(a)(1) and (5)
 of the Statute by changing the starting and quitting times for the field
 employees in question herein in its EP/EO Division without affording
 NTEU the opportunity to negotiate on the decision to do so.
 
    The General Counsel has requested, as a remedy, that the Authority
 order a return to the status quo ante.  Noting particularly that the
 Respondent failed to meet its duty to bargain under the Statute with
 NTEU concerning the decision to change starting and quitting times, the
 Authority finds that an order directing reestablishment of the previous
 starting and quitting times for the four employees is necessary to
 effectuate the purposes and policies of the Statute.  See U.S. Customs
 Service, Region V, New Orleans, Louisiana, supra.  /4/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, the
 Authority hereby orders that the Internal Revenue Service, Los Angeles
 District, shall:
 
    1.  Cease and desist from:
 
    (a) Instituting any change in the starting and quitting times of
 employees without affording the National Treasury Employees Union, the
 exclusive bargaining representative of its employees, the opportunity to
 negotiate with respect to any proposed changes thereto.
 
    (b) In any like or related manner interfering with, restraining or
 coercing employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Reestablish the previous starting and quitting times for the four
 employees in question and afford the National Treasury Employees Union
 the opportunity to negotiate with respect to any proposed changes
 thereto.
 
    (b) Post at its facilities in the Los Angeles District 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
 District Director or his designee and 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 posted.  Reasonable steps shall be taken to insure that such
 Notices are not altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Federal Labor Relations
 Authority's Rules and Regulations, notify the Regional Director, Region
 VIII, Federal Labor Relations Authority, 350 South Figueroa Street, 10th
 Floor, Los Angeles, California 90071, in writing, within 30 days from
 the date of this Order, as to what steps have been taken to comply
 herewith.  
 
 Issued, Washington, D.C., December 13, 1982
 
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT institute any change in the starting and quitting times
 of employees without affording the National Treasury Employees Union,
 the exclusive bargaining representative of our employees, the
 opportunity to negotiate with respect to any proposed changes thereto.
 
    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
 Federal Service Labor-Management Relations Statute.
 
    WE WILL reestablish the previous starting and quitting times for the
 four employees in question, and, upon request, afford the National
 Treasury Employees Union the opportunity to negotiate with respect to
 any proposed changes thereto.
                                       (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, Region VIII, Federal Labor Relations Authority, whose address
 is:  350 Figueroa Street, 10th Floor, Los Angeles, California 90071, and
 whose telephone number is:  (213) 688-3805.
 
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Respondent moved to strike the General Counsel's brief on the
 grounds that the General Counsel cited various recommended decisions by
 Administrative Law Judges, which allegedly constitutes the use of
 "secret law." Inasmuch as the Authority, in reaching its decision in
 this or any case, does not consider recommendations of any Judge in
 other than the case before it, and as such recommended decisions have no
 precedential value, the motion to strike the General Counsel's brief is
 denied.
 
 
    /2/ Section 7116(a)(1) and (5) provides:
 
    Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                .  .  .  .
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter(.)
 
 
    /3/ Section 7106(b)(1) provides:
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from negotiating--
 
          (1) at the election of the agency, on the numbers, types, and
       grades of employees or positions assigned to any organizational
       subdivision, work project, or tour of duty, or on the technology,
       methods, and means of performing work(.)
 
 
    /4/ See also Federal Correctional Institution, 8 FLRA No. 111 (1982).