U.S. Federal Labor Relations Authority

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14:0698(92)CA - IRS (District, Region, National Office Unit) and NTEU -- 1984 FLRAdec CA

[ v14 p698 ]
The decision of the Authority follows:

 14 FLRA No. 92
 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
    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.
    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.
    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
          (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.