14:0698(92)CA - IRS (District, Region, National Office Unit) and NTEU -- 1984 FLRAdec CA
[ v14 p698 ]
14:0698(92)CA
The decision of the Authority follows:
14 FLRA No. 92
INTERNAL REVENUE SERVICE (DISTRICT,
REGION, NATIONAL OFFICE UNIT)
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-1964
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the 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
stipulation of facts, accompanying exhibits, and the parties'
contentions, the Authority finds:
The complaint herein alleges that the Respondent, Internal Revenue
Service (District, Region, National Office Unit), violated section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute (the Statute) /1/ by refusing to negotiate with the National
Treasury Employees Union (NTEU) over the impact and implementation of
its validation study of the Employee Plans Case Assignment Guide (the
Guide) /2/ and by bypassing NTEU when the Respondent conducted
interviews with unit employees concerning the Guide as a part of the
study.
The stipulated record shows that the Respondent notified NTEU by
letter dated October 7, 1980, that a validation study of the Guide would
be conducted, and that as a part of the study, unit employees would be
interviewed to gather information on the accuracy of the Guide. The
letter listed a number of locations where the interviews would be held
beginning October 27, 1980, and continuing into December of that year.
By letter dated October 27, 1980, NTEU requested bargaining over the
Guide and expressed its opposition to any attempt by the respondent to
select the employees to be interviewed or to hold the interviews without
inviting NTEU's representatives to attend. On November 14, 1980, NTEU
notified the Activity that it was still waiting for an answer to its
request to negotiate. On November 18, 1980, the Respondent informed
NTEU that its position with respect to the employee interviews was the
same as that contained in a June 1980 letter to NTEU concerning a prior
incident involving such employee interviews. In that letter, the
Respondent expressed the view that the interviews with unit employees
were not formal discussions within the meaning of section 7114(a)(2)(A)
of the Statute /3/ at which NTEU was entitled to be represented.
The General Counsel here argues that while the Guide itself, and the
decision to validate it, are not negotiable, the impact and
implementation of the decision to validate the Guide are negotiable.
Thus, the General Counsel argues that the procedures for implementing
the survey and, specifically, the method of conducting employee
interviews should have been the subject of negotiations, and that the
Respondent's failure to bargain constitutes a violation of section
7116(a)(1) and (5) of the Statute. The General Counsel further argues
that the Respondent bypassed NTEU in violation of section 7116(a)(1) and
(5) of the Statute by conducting interviews with unit employees without
having provided NTEU an opportunity to be present at such interviews.
The Respondent contends that it had no obligation to bargain over the
impact and implementation of the validation study, but that even
assuming such a bargaining obligation existed, NTEU's request to
negotiate was untimely as it was dated the day the study began and was
received after the implementation date, although notice was given
approximately three weeks earlier.
As previously noted, the Respondent informed NTEU of the validation
study by letter dated October 8. Also contained in that letter was
notification that employees would be interviewed as a part of the study
along with a list of the Respondent's locations to be visited and
corresponding dates commencing on October 27, 1980. The record
indicates that NTEU's request to bargain was dated October 27, the date
the study was scheduled to begin. When a union has adequate notice of
when a change is to be implemented, it must make a timely request for
impact bargaining. See United States Department of Defense, Department
of the Army, Headquarters, Fort Sam Houston, Texas, 8 FLRA 623 (1982).
In the Authority's view, NTEU's bargaining request, which was made
nearly three weeks after notification was given and which was made on
the same date as the study was scheduled to begin, was not timely made.
Under these circumstances, the Respondent had no obligation to bargain
and its failure to do so cannot be found to have violated the Statute.
/4/
With respect to the allegation that the Respondent bypassed NTEU by
conducting interviews with unit employees in violation of section
7116(a)(1) and (5) of the Statute, the Authority previously has stated
that not all direct communication between management and its employees
is prohibited. See Kaiserslautern American High School, Department of
Defense Dependents Schools, Germany North Region, 9 FLRA 184 (1982). In
the instant case, the Respondent was merely attempting to gather factual
information to determine whether its case assignment procedures were
working as envisioned when the Guide was created, and involved no
attempt to deal directly with unit members or to undermine the status of
NTEU as the employees' exclusive representative. See Internal Revenue
Service (District, Region, National Office Unit), 11 FLRA no. 23 (1983),
aff'd sub nom. national treasury employees union v. Federal Labor
Relations Authority, No. 83-1295 (D.C. Cir. Jan. 26, 1984); Division of
Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA
307 (1982). Thus, the Authority concludes that this allegation of the
complaint also must be dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-1964 be, and it
hereby is, dismissed.
Issued, Washington, D.C., May 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) of the Statute 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(.)
/2/ The Employee Plans Case Assignment Guide is used to rate cases
for assignment to appropriate grade level employees.
/3/ Section 7114(a)(2)(A) provides:
Sec. 7114. Representation rights and duties
(a)(1) A labor organization which has been accorded exclusive
recognition is the exclusive representative of the employees in
the unit it represents and is entitled to act for, and negotiate
collective bargaining agreements covering, all employees in the
unit. An exclusive representative is responsible for representing
the interests of all employees in the unit it represents without
discrimination and without regard to labor organization
membership.
(2) 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 practices or other general condition of employment(.)
/4/ In view of this disposition, it is unnecessary to pass upon the
Respondent's arguments with respect to the scope of the bargaining
obligation over the validation study.