12:0372(80)CA - Treasury, IRS, Atlanta District Office, Atlanta, GA and NTEU -- 1983 FLRAdec CA
[ v12 p372 ]
12:0372(80)CA
The decision of the Authority follows:
12 FLRA No. 80
DEPARTMENT OF TREASURY
INTERNAL REVENUE SERVICE
ATLANTA DISTRICT OFFICE
ATLANTA, GEORGIA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case Nos. 4-CA-1155
4-CA-1233
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in the
unfair labor practices alleged in the consolidated complaint and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Exceptions to the Judge's Decision were
filed by the Respondent, and both the General Counsel and the Charging
Party filed oppositions to the Respondent's exceptions.
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 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, the Authority hereby adopts the
Judge's findings, /1/ conclusions /2/ and recommendations.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Department of Treasury, Internal Revenue Service, Atlanta
District Office, Atlanta, Georgia, shall:
1. Cease and desist from:
(a) Failing to afford the National Treasury Employees Union
appropriate notification of, and an opportunity to be represented at, a
formal discussion between one or more representatives of the agency and
one or more employees in the unit concerning personnel policies and
practices or other general conditions of employment.
(b) In any like or related manner interfering with, restraining, or
coercing its 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) Provide the National Treasury Employees Union with appropriate
prior notification of, and an opportunity to be represented at, any
formal discussion between one or more representatives of the agency and
one or more employees in the unit concerning personnel policies and
practices or other general conditions of employment.
(b) Post at all offices within the jurisdiction of the Atlanta
District Office copies of the attached Notice on forms to be furnished
by the Authority. Upon receipt of such forms, they shall be signed by
the Director of the Atlanta District, 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. The Director shall take reasonable
steps to insure that such Notices are not altered, defaced, or covered
by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IV, Federal Labor
Relations Authority, 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., July 29, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, 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 fail to afford the National Treasury Employees Union
appropriate notification of, and an opportunity to be represented, at a
formal discussion between one or more representatives of the agency and
one or more employees in the unit concerning personnel policies and
practices or other general conditions of employment. 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 provide the National
Treasury Employees Union with appropriate prior notification of, and an
opportunity to be represented at, any formal discussion between one or
more representatives of the agency and one or more employees in the unit
concerning personnel policies and practices or other general conditions
of employment.
(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 IV,
Federal Labor Relations Authority, whose address is: 1776 Peachtree
Street, N.W., Suite 501, North Wing, Atlanta, GA. 30309 and whose
telephone number is: (404) 881-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 4-CA-1155
Case No.: 4-CA-1233
Harry Mason, Esquire
For the Respondent
Barbara S. Liggett, Esquire
For the General Counsel
Timothy Welsh, Esquire
For the Charging Party
Before: BURTON S. STEINBURG
Administrative Law Judge
DECISION
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.Section 7101, et seq., and the Rules and Regulations issued
thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980, and Vol. 46,
No. 154, August 11, 1981, 5 C.F.R.Chapter XIV, Part 2411, et seq.
Pursuant to charges filed on August 18, and September 15, 1981, in
case numbers 4-CA-1155 and 4-CA-1233, respectively, by the National
Treasury Employees Union (hereinafter called the Union or NTEU), a
Consolidated Complaint and Notice of Hearing was issued on July 15,
1982, by the Regional Director for Region IV, Federal Labor Relations
Authority, Atlanta, Georgia. The Complaint alleges, in substance, that
the Department of the Treasury, Internal Revenue Service, Atlanta
District office, Atlanta, Georgia, (hereinafter called the Respondent or
IRS), violated Sections 7116(a)(1), (5) and (8) of the Federal Service
Labor-Management Relations Statute, (hereinafter called the Statute or
Act), by virtue of its actions in conducting two meetings with its
employees wherein, "personnel policies, practices and procedures and
other general conditions of employment of employees were discussed"
without giving the Union prior notice of such meetings and an
opportunity to attend.
A hearing was held in the captioned matter on August 17, 1982, in
Atlanta, Georgia. All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The Respondent, the General
Counsel and the Charging Party submitted post hearing briefs which have
been duly considered. /3/
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
The Union, the charging party herein, is the exclusive bargaining
representative of Respondents professional and non-professional
employees working in the Atlanta, Georgia District Office, which
includes, among other areas, the Birmingham, Alabama office of
Respondent.
The Complaint alleges, and Respondent admits, that on or about July
22, 1981, Respondent's representatives, namely, Mr. Eugene Cassidy,
Division Chief, Exempt Plans/Employer Organizations Divisions, Atlanta,
Georgia, Mr. Charles Baumann, Group Manager, Birmingham, Alabama, and
Mr. Michael Patton, Chief Counsel's Office, Washington, D.C. conducted a
meeting at Birmingham, Alabama, which was attended by a number of unit
employees. During the course of the meeting a discussion was had with
the unit employees concerning "personnel policies, practices and
procedures, and other general conditions of employment of "the unit
employees working in Birmingham, Alabama.
The Complaint alleges, and Respondent admits, that on or about August
4, 1981, Mr. Charles Baumann and Ms. Katherine San Embterio, Group
Manager, Atlanta, Georgia, conducted a meeting at Birmingham, Alabama,
which was attended by a number of unit employees. Respondent further
admits that during the meeting there was a discussion of "personnel
policies, practices and procedures and other general conditions of
employment of employees in the unit". /4/
Mr. Hal Dubin, who, at the time of the events underlying the instant
complaint, was NTEU, "Chapter President, Atlanta District, Chapter 26",
testified that he had never been given notice of the two Birmingham,
Alabama meetings. Mr. Dubin further testified that according to the
collective bargaining agreement /5/ he was the Union representative
authorized to receive notice on behalf of the Union of any meetings.
Mr. Dubin acknowledged, however, that on July 22, 1981, he had been
informed during a meeting in Atlanta, Georgia, with Mr. Bullard,
Assistant Chief, EP/EO Division, Atlanta District, that the Group
Manager in Birmingham had resigned and that it would be necessary to
either "replace him with another group manager on-site in Birmingham or
to make some other re-alignment."
Mr. Bullard testified that about 1 p.m. on July 22, 1981, he advised
Mr. Dubin that Mr. Cassidy was in Birmingham, Alabama, and that Mr.
Cassidy intended to hold a meeting in Birmingham about one hour later
for purposes of announcing that Ms. San Embterio was going to be the new
group manager at Birmingham. According to Mr. Bullard, he had been
instructed by Mr. Cassidy to inform Mr. Dubin of the change in
Birmingham in order to allow him, Mr. Dubin, if he so desired, to
contact the Birmingham office and designate a unit employee in
Birmingham as his representative at the meeting. Mr. Bullard further
testified that although he had never given this type of notice to Mr.
Dubin in the past, it was his understanding that it had been Mr. Dubin's
past practice with respect to meetings held in Respondent's outlying
offices to designate a representative rather than attend such meetings
himself. /6/
With respect to the August 4, 1981, meeting, Respondent offered no
evidence to contradict Mr. Dubin's testimony that he, Mr. Dubin, had no
advance notice of the meeting.
Discussion and Analysis
The Complaint alleges that Respondent violated Sections 7116(a)(1),
(5) and (8) of the Statute by virtue of its actions in holding formal
discussions within the meaning of Section 7114(a)(2)(A) /7/ without
providing the Union with notice and an opportunity to be present.
According to both a literal reading of Section 7114(a)(2)(A) and
applicable case precedent, the Union is only entitled to have notice and
an opportunity to attend discussions which are formal in nature. In the
absence of a showing that the discussions were indeed formal, a failure
to give the Union notice and an opportunity to attend is not violative
of Sections 7116(a)(1), (5) and (8) of the Statute.
While the formality of the two meetings in question was not
specifically litigated at the hearing, it is obvious that all parties to
the proceeding were in agreement that the meetings were indeed formal.
Thus, it is noted that Respondent's Counsel in his post hearing brief
acknowledges that Respondent's answer to the consolidated complaint
"admitted the meetings were held; admitted the meetings were formal
discussions involving personnel policies, etc.".
Accordingly, in view of the foregoing acknowledgement from
Respondent's Counsel, it is obvious that the only issues for resolution
are whether or not notice of the meetings were given, and if so, the
adequacy of such notice.
As noted in the factual portion of this decision, Mr. Dubin, NTEU
Chapter President, denied receiving any prior notice of the July 22 or
August 4, 1981 meetings. His testimony with regard to not receiving any
notice of the August 4, 1981, meeting stands unrebutted.
With respect to the July 22, 1981, meeting, Mr. Bullard testified
that he had given Mr. Dubin notice of this meeting at approximately 1
p.m. that day. Due to the time change in Birmingham, Alabama, the
alleged notice would have occurred one hour prior to the meeting.
In view of the foregoing, it is obvious that a credibility
determination is in order. Accordingly, having observed both witnesses,
I credit Mr. Dubin's testimony that he had not received any advanced
notice of the July 22, 1981 meeting.
Having credited Mr. Dubin with respect to the conflict in testimony
concerning whether or not he had received prior notice of the July 22
meeting, and in the absence of any contradiction of Mr. Dubin's
testimony with respect to the absence of notice of the August 4, 1981,
meeting, I find that Respondent violated Sections 7116(a)(1), (5) and
(8) of the Statute by virtue of its actions in holding two formal
meetings with employees, wherein terms and conditions of employment were
discussed, without first giving the Union notice of such meetings and an
opportunity to attend. Internal Revenue Service, Fresno Service Center,
Fresno, California, 7 FLRA No. 54.
Having found that Respondent violated Sections 7116(a)(1), (5) and
(8) of the Statute by virtue of its actions in holding formal
discussions with unit employees concerning terms and conditions of
employment without giving the Union prior notice of such meetings and an
opportunity to attend, I recommend that the Authority issue the
following order designed to effectuate the purposes and policies of the
Statute.
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Respondent, Department of Treasury, Internal Revenue Service,
Atlanta District Office, Atlanta, Georgia, shall:
1. Cease and desist from:
(a) Failing to afford the National Treasury Employees Union
appropriate notification of, and an opportunity to be represented
at, a formal discussion between one or more representatives of the
agency and one or more employees in the unit concerning personnel
policies and practices or other general conditions of employment.
(b) In any like or related manner failing or refusing to comply
with any provision of the Federal Service Labor-Management
Re7ations Statute.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute.
(a) Provide the National Treasury Employees Union with
appropriate prior notification of, and an opportunity to be
represented at, any formal discussion between one or more
representatives of the agency and one or more employees in the
unit concerning personnel policies and practices or other general
conditions of employment.
(b) Post at all offices within the jurisdiction of the Atlanta
District Office copies of the attached Notice marked "Appendix" on
forms to be furnished by the Authority. Upon receipt of such
forms, they shall be signed by the Director of the Atlanta
District and shall be posted and maintained by him for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. The Director shall take reasonable steps to
insure that such notices are not altered, defaced, or covered by
any other material.
(c) Pursuant to 5 C.F.R., Section 2423.30, notify the Regional
Director, Federal Labor Relations Authority, Region 4, in writing,
within 30 days from the date of this order, as to what steps have
been taken to comply herewith.
BURTON S. STERNBURG
Administrative Law Judge
Date: October 26, 1982
Washington, D.C.
APPENDIX
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
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail to afford the National Treasury Employees Union
appropriate notification of, and an opportunity to be represented at, a
formal discussion between one or more representatives of the agency and
one or more employees in the unit concerning personnel policies and
practices or other general conditions of employment. WE WILL NOT in any
like or related manner, fail or refuse to comply with any provision of
the Federal Service Labor-Management Relations Statute. WE WILL NOT in
any like or related manner, interfere with, restrain, or coerce any
employee in the exercise of any right under the Federal Service
Labor-Management Relations Statute. WE WILL provide the National
Treasury Employees Union with appropriate prior notification of, and an
opportunity to be represented at, any formal discussion between one or
more representatives of the agency and one or more employees in the unit
concerning personnel policies and practices or other general conditions
of employment.
(Agency or Activity)
Dated: . . . By: (Signature) 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 for the Federal
Labor Relations Authority, Region 4, whose address is: 1776 Peachtree
Street, N.W., Suite 501, North Wing, Atlanta, Georgia, 30309, and whose
telephone number is: (404) 881-2324.
--------------- FOOTNOTES$ ---------------
/1/ The Respondent excepted to certain credibility findings made by
the Judge. The demeanor of witnesses is a factor of consequence in
resolving issues of credibility, and the Judge has had the advantage of
observing the witnesses while they testified. The Authority will not
overrule a Judge's resolution with respect to credibility unless a clear
preponderance of all the relevant evidence demonstrates that such
resolution was incorrect. The Authority has examined the record
carefully, and finds no basis for reversing the Judge's credibility
findings.
/2/ However, the Authority finds it unnecessary to decide whether the
Respondent, in addition to having violated section 7116(a)(1) and (8) of
the Statute, also violated section 7116(a)(5).
/3/ General Counsel's motion to correct the transcript with respect
to the proper spelling of the name "San Embterio" is hereby granted.
/4/ Other than indicating that the July 22, 1981, meeting was called
for the purpose of announcing that Ms. San Embterio was going to be the
new group manager in Birmingham, and that the August 4, 1981, meeting
was called for the purpose of introducing Ms. Embterio to the employees
in Birmingham, Alabama, the record is barren of any evidence concerning
the format, prior arrangements for the two meetings or how the
discussions arose and were conducted at the meetings. In view of
Respondent's admissions set forth above, the General Counsel made it
clear at the opening of the hearing that the "only issue in these cases
then is whether the NTEU was given notice of these meetings and an
opportunity to attend." To this end, the General Counsel's record
presentation was limited solely to evidence bearing on whether
Respondent had given notice to the Union of the meetings and an
opportunity to attend same.
/5/ The collective bargaining contract provides that notice of formal
discussions will be given to the Chief Steward or Chapter President.
/6/ Mr. Cassidy testified that prior to leaving for Birmingham, he
had instructed Mr. Bullard to inform Mr. Dubin of the impending
Birmingham announcement at approximately 1 p.m. According to Mr.
Cassidy, it was his intention that the Union and the employees receive
the news about the same time.
/7/ Section 7114(a)(2)(A) provides as follows:
An exclusive representative of an appropriate unit in an agency
shall be given the opportunity to be represented at--
(A) any formal discussion between one or more representatives
of the agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy
or practice or other general conditions of employment.