[ v16 p98 ]
16:0098(23)CA
The decision of the Authority follows:
16 FLRA No. 23
INTERNAL REVENUE SERVICE,
WASHINGTON, D.C. AND
FRESNO SERVICE CENTER, FRESNO,
CALIFORNIA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case Nos. 9-CA-861
9-CA-538
9-CA-687
9-CA-881
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding in Case Nos. 9-CA-861 and 9-CA-538
that the General Counsel had failed to establish that the Respondent
engaged in the alleged unfair labor practices and recommending that
those complaints be dismissed. In Case Nos. 9-CA-687 and 9-CA-881, the
Judge concluded that the Respondent had engaged in the alleged unfair
labor practices and recommended that the Respondent be ordered to cease
and desist therefrom and take certain affirmative action. Thereafter,
the Respondent filed timely exceptions to the Judge's Decision in Case
No. 9-CA-881 with a supporting brief, /1/ and the Charging Party filed
an opposition thereto.
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 in Case Nos. 9-CA-861, 9-CA-538
and 9-CA-687, the Authority hereby adopts the Judge's findings,
conclusions and recommendations, noting particularly the absence of
timely exceptions. In adopting the Judge's conclusion in Case No.
9-CA-687 that the Charging Party was entitled to be represented by a
representative of its own choosing because the grievance meeting in
question was a formal discussion within the meaning of section
7114(a)(2)(A) of the Statute, the Authority notes that the meeting was
scheduled in advance, was structured in accordance with the negotiated
grievance procedure, and concerned a grievance filed under the
negotiated grievance procedure by a bargaining unit employee. See
Office of Program Operations, Field Operations, Social Security
Administration, San Francisco Region, 10 FLRA 172 (1982); Defense
Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA No. 78
(1984). Accordingly, the complaints in Case Nos. 9-CA-861 and 9-CA-538
shall be dismissed in their entirety, and the Respondent shall be
directed to cease and desist from the violations found by the Judge in
Case No. 9-CA-687 and to take appropriate affirmative action.
Concerning Case No. 9-CA-881, in agreement with the Judge's
conclusion, the Authority finds that the Respondent's failure to provide
the Union with adequate prior notice of its decision to change from
one-day to two-day voluntary details to 30-day mandatory details was
violative of section 7116(a)(1) and (5) of the Statute. In so finding,
the Authority emphasizes that where an agency in exercising a management
right under section 7106 of the Statute changes conditions of employment
of unit employees, there exists a statutory duty to negotiate where such
change results in an impact upon unit employees or such an impact upon
unit employees was reasonably foreseeable, see U.S. Government Printing
Office, 13 FLRA No. 39 (1983), unless the impact or reasonably
foreseeable impact is no more than de minimis. Department of Health and
Human Services, Social Security Administration, Chicago Region, 15 FLRA
No. 174 (1984). /2/
ORDER
IT IS ORDERED that the complaints in Case Nos. 9-CA-861 and 9-CA-538
be, and they hereby are, dismissed in their entirety.
IT IS FURTHER ORDERED in Case No. 9-CA-687, pursuant to section
2423.29 of the Federal Labor Relations Authority's Rules and Regulations
and section 7118 of the Statute, that Internal Revenue Service, Fresno
Service Center, Fresno, California, shall:
1. Cease and desist from:
(a) Precluding designated representatives of National Treasury
Employees Union, the exclusive representative of a bargaining unit of
its employees, from attending grievance procedure meetings on their own
time.
(b) Failing and refusing to bargain in good faith with National
Treasury Employees Union, the exclusive representative of a bargaining
unit of its employees, by refusing to recognize its designation of
representatives for purposes of attending grievance procedure meetings.
(c) Interfering with the right of National Treasury Employees Union,
the exclusive representative of a bargaining unit of its employees, to
designate representatives of its own choosing for purposes of attending
formal discussions concerning grievances.
(d) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Offer to National Treasury Employees Union, the exclusive
representative of a bargaining unit of its employees, the opportunity to
designate which representatives shall attend grievance procedure
meetings, on their own time.
(b) Post at the Fresno Service Center, Fresno, California, copies of
the attached notice marked "Appendix A," on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by the Director of the Fresno Service Center, 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 ensure that said 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 IX, 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.
IT IS FURTHER ORDERED in Case No. 9-CA-881, pursuant to section
2423.29 of the Authority's Rules and Regulations and section 7118 of the
Statute, that Internal Revenue Service, Fresno Service Center, Fresno,
California, shall:
1. Cease and desist from:
(a) Making changes in practices concerning working conditions, such
as the 30-day details of non-volunteering, bargaining unit employees, to
the Computer Tape Library at the Fresno Service Center, Fresno,
California, without first notifying National Treasury Employees Union,
the exclusive representative of a bargaining unit of its employees, and
giving it the opportunity to bargain over the impact and implementation
of the changes.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed by the Federal
Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Notify National Treasury Employees Union, the exclusive
representative of a bargaining unit of its employees, of any decision to
make changes in practices concerning details of bargaining unit
employees at the Fresno Service Center and, upon request, bargain on the
impact and implementation of such decision.
(b) Post at the Fresno Service Center, Fresno, California, copies of
the attached notice marked "Appendix B," on forms to be furnished by the
Federal Labor Relations Authority. Upon receive of such forms, they
shall be signed by the Director of the Fresno Service Center, 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 ensure that said 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 IX, 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.
IT IS FURTHER ORDERED that the other allegations of the complaint in
Case No. 9-CA-881, be, and they hereby are, dismissed.
Issued, Washington, D.C., September 28, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX A
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 preclude designated representatives of National Treasury
Employees Union, the exclusive representative of a bargaining unit of
our employees, from attending grievance procedure meetings on their own
time.
WE WILL NOT fail or refuse to bargain in good faith with National
Treasury Employees Union, the exclusive representative of a bargaining
unit of our employees, by refusing to recognize its designation of
representatives for purposes of attending grievance procedure meetings.
WE WILL NOT interfere with the right of National Treasury Employees
Union, the exclusive representative of a bargaining unit of our
employees, to designate representatives of its own choosing for purposes
of attending formal discussions concerning grievances.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of their rights guaranteed by the
Federal Service Labor-Management Relations Statute.
WE WILL offer to National Treasury Employees Union, the exclusive
representative of a bargaining unit of our employees, the opportunity to
designate which representatives shall attend grievance procedure
meetings on their own time.
(Agency or 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 for the Federal Labor Relations Authority, Region IX, whose
address is: 530 Bush Street, Room 542, San Francisco, California 94108,
and whose telephone number is: (415) 556-8105.
APPENDIX B
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 make changes in practices concerning working conditions,
such as the 30-day details of non-volunteering, bargaining unit
employees to the Computer Tape Library at the Fresno Service Center,
Fresno, California, without first notifying National Treasury Employees
Union, the exclusive representative of a bargaining unit of our
employees, and giving it the opportunity to bargain over the impact and
implementation of the changes.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights guaranteed by
the Federal Service Labor-Management Relations Statute.
WE WILL notify National Treasury Employees Union, the exclusive
representative of a bargaining unit of our employees, of any decision to
make changes in practices concerning details of bargaining unit
employees at the Fresno Service Center and upon request, bargain on the
impact and implementation of such decision.
(Agency or 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 for the Federal Labor Relations Authority, Region IX, whose
address is: 530 Bush Street, Room 542, San Francisco, California 94108,
and whose telephone number is: (415) 556-8105.
-------------------- ALJ$ DECISION FOLLOWS --------------------
INTERNAL REVENUE SERVICE,
WASHINGTON, D.C. and
FRESNO SERVICE CENTER
FRESNO, CALIFORNIA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case Nos.: 9-CA-861
9-CA-538
9-CA-687
9-CA-881
Paul L. Dixon,
Attorney for Respondent
Lucinda Bendat,
Attorney for the Charging Party
Bari S. Ness,
Attorney for the General Counsel,
Federal Labor Relations Authority
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191 (1978), 5 U.S.C. 7101 et seq. (Supp.
III, 1979) (hereinafter referred to as the "Statute") and the Rules and
Regulations issued thereunder and published at 45 Fed.Reg. 3486 et seq.,
5 C.F.R. 2400 et seq.
Complaints in four cases against the Internal Revenue Service were
issued on April 30, 1981 (Case No. 9-CA-861), September 30, 1980 (Case
No. 9-CA-538), January 30, 1981 (Case No. 9-CA-687) and on May 28, 1981
(Case No. 9-CA-881). An amended Complaint was issued in Case No.
9-CA-687 on May 28, 1981. These four cases were consolidated for
hearing by an Order dated June 9, 1981, along with several other cases
against IRS. /3/
A hearing was held on the four cases enumerated above on July 15 and
16, 1981, in Fresno, California. At the opening of the hearing, the
General Counsel moved to amend the Complaints in Case Nos. 9-CA-538 and
687 to name "Internal Revenue Service, Washington, D.C." See TR5. Both
Complaints already name the Fresno Service Center of Internal Revenue
Service as a respondent. In addition, the Complaint in Case No.
9-CA-687 named the "National Office" of Internal Revenue Service.
Respondent in the other two Complaints was already named as "Internal
Revenue Service, Washington, D.C. and Fresno Service Center." The motion
was granted over the objections of Respondent.
Respondent moved to dismiss, as respondent, "Internal Revenue
Service, Washington, D.C.", in Case Nos. 9-CA-538, 687 and 881, on the
ground that the Complaints in these cases do not allege any acts
committed by such a party. The motion was denied, subject to
reconsideration. At pages 1-2 of the brief, Respondent seeks such
reconsideration.
The parties appeared, put on evidence, and examined and
cross-examined witnesses. Oral argument was waived. Briefs were
submitted by the General Counsel and the Charging Party, on September
18, and by IRS, on September 22. Based upon the record made by the
parties, my observation of the demeanor of the witnesses, and the briefs
of the parties, I make the following findings, conclusions and
recommended order. /4/
Statutory Provisions Involved
The following statutory provisions are relied upon by the parties in
these cases:
Section 7116 provides that:
(a) For the purpose of this chapter, it shall be an unfair
labor practice for any 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; . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
Section 7102 provides that:
Each employee shall have the right to form, join, or assist any
labor organization, or to refrain from any such activity, freely
and without fear of penalty or reprisal, and each employee shall
be protected in the exercise of such right. Except as otherwise
provided under this chapter, such right includes the right--
(1) to act for a labor organization in the capacity of a
representative and the right, in that capacity, to present the
views of the labor organization to heads of agencies and other
officials of the executive branch of the Government, the Congress,
or other appropriate authorities, and
(2) to engage in collective bargaining with respect to
conditions of employment through representatives chosen by
employees under this chapter.
Section 7114(a)(2)(A) provides that:
(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 . . . .
Case No. 9-CA-861
In Case No. 9-CA-861, the Complaint alleges that Respondent
unilaterally implemented new minimum standards in its Data Conversion
Branch, thereby failing to satisfy its obligation to bargain with the
National Treasury Employees Union about their impact and implementation
on bargaining-unit employees, in violation of Sections 7116(a)(1) and
(5) of the Statute. See Counts 9, 10 and 17 of GC Ex-1, 6(a). /5/
Findings of Fact
1. For purposes of Case No. 9-CA-861, Internal Revenue Service,
Washington, D.C. (hereinafter also referred to as "IRS") has admitted
that it is an agency within the meaning of Section 7103(a)(3) of the
Statute and that its Fresno Service Center (hereinafter, "FSC") is a
component of IRS. See GC Ex-6(b).
2. The National Treasury Employees Union (hereinafter, the "Union")
is the exclusive representative of a unit of all professional and
nonprofessional employees of all Service Centers, including the FSC.
Chapter 97 of the Union is located at the FSC. The President of Chapter
97, since January 1977, has been Donald Geiger. Mr. Geiger has been an
employee at the FSC since around December 1971. He has worked as a tax
examiner in the Returns Analysis and Adjustment Branches, a clerk in the
Adjustments Control Unit, and now works in the Technical Unit, in the
Taxpayers Relations Branch, where he handles complex cases,
congressional relations and problem resolution cases.
3. A Multi-Center Agreement between IRS and the Union became
effective on October 18, 1975. The Multi-Center Agreement (hereinafter,
the "Agreement") covers 11 Service Centers, including the FSC. For all
purposes relevant to this proceeding, the 1975 Agreement has been in
effect. Negotiations over an agreement to replace the 1975 Agreement
have been ongoing for several years, at the national level. A new
Master Agreement, which went into effect in January 1981, involves only
the National Office, not the Service Centers.
4. The FSC has been functional since 1972. Its primary function is
the processing of tax returns. It is composed of about 13 branches, one
of which is the Data Conversion Branch ("DCB"). DCB employees put
information taken from tax returns and other documents into the computer
system. About 1000 employees work in the DCB from January to July.
They are mostly seasonal employees who are furloughed, in July, until
the next tax-filing season.
5. The FSC uses a Minimum Performance Standard System ("MPSS") by
which its managers plan and control their work, and gauge whether they
are staying within their budget. A Minimum Performance Standard ("MPS")
is set, at least yearly, for each program upon which an employee works.
The MPSS has been in existence at the FSC since 1972, and has not
changed over the years. It is applied only in those branches where
performance can be measured numerically. It has been used in the DCB
since 1972. /6/
6. The MPSS generates documents by which the performance of
individual employees is measured. One is the Individual System for
Evaluating Performance ("ISEP" or "EPEL") which, for example, tells the
data transcribers in DCB whether they are "midway amongst their peers,
or high or low as to how their peers are performing." (TR76). Another
is the Individual Performance Report ("IPR") which tells a data
transcriber exactly what his or her standard of performance is, and
whether he or she is meeting the standard set under the MPSS. Failure
to meet a minimum standard results, generally, in counselling,
additional training, and more supervision. Ultimately, the employee may
receive a Deficiency Letter stating that the expected standard of
performance is not being met, and giving the recipient a couple of weeks
to improve performance. Failure to meet an MPS has been used as the
basis for terminating an employee, although this is not, inevitably, the
result. Policy on terminations is made at branch level and applied by
individual supervisors on the basis of their workload.
7. Respondent recognizes a bargaining duty as the impact and
implementation of a decision to institute the MPSS in a branch. Once it
is instituted, however, Respondent unilaterally sets the yearly MPS for
programs in the branch, in the belief that the yearly change is not a
change in working conditions, but merely an adjustment to keep the
workload of the employees at the same level from year to year.
8a. It was established, by the testimony of Mr. Przecha, just how
minimum standards are set. Under the MPSS, recomputations of minimum
standards are made yearly, based upon the prior year's actual
performance on the job by employees, plus or minus any known changes in
the coming year. Information on known changes is received from the
National Office.
8b. The 1040A program in 1981 provides an example of known changes.
The 1040A is a single-page document used by low-income taxpayers. This
document requires a data transcriber to make less than 100 key strokes
in order to enter the data from the document into the computer system.
During the 1981 filing season, the 1040A contained additional
information, required for revenue sharing with county governments.
Prior to the start of the tax-filing season, the FSC knew that this
information would be included and that it would require an additional
eight key strokes to enter this data into the computer.
8c. Other examples of known changes that have been factored into the
development of minimum standards are changes made in tax-return forms,
and in how tax returns are audited. Technological changes would be
considered also; but none of these have yet occurred at FSC.
8d. Known changes are applied to the achieved rate of performance
for the prior year, and a new standard is then established. This
procedure is followed for each program, such as the 1040A program.
8e. When a new program has come into the FSC on which there is no
past experience, the National Office has generally made a trial run at
some facility, takes statistical samples, and arrives at minimum
standards. (There was no evidence or allegation that the new minimum
standards here at issue were the result of new programs.)
8f. After the above-described standard is arrived at, it is divided
into the number of documents expected to be received. This determines
the number of staff hours that will be required. Respondent maintains
excellent records of documents received; and they allow accurate
prediction of the number of documents that will be received. These
staff-hour requirements are submitted to Washington and generally
approved.
8g. Each division of the FSC then takes its particular portion of
the work plan and determines how it will meet its program requirements.
That is, from knowledge of the number of hours it will take to produce a
program and the date by which the program must be completed, it can be
determined how many people will be needed and when they will be needed.
In addition, each Branch Chief must consider factors of staffing
peculiar to his or her Branch. For example, since the DCB has mostly
seasonal workers, consideration must be given to whether there will be a
high returning rate of data transcribers, or a high number of new
trainees who cannot perform as well as returning workers.
8h. The standard that is ultimately arrived at is put into the Work
Planning and Control System so that the Branch Chief, at any given time,
knows whether he or she is maintaining the standard, overall, and is
within budgetary guidelines for the Branch. Once these standards are
set, they are communicated to individual employees.
9. The aim of the MPSS is to keep the workload of the employees at
the same level, from year to year. Sometimes, however, workloads of
employees are increased or decreased; and such changes are reflected in
the minimum standards computations. Since the actual performance rate
of DCB employees in 1980 was not adduced, it cannot be ascertained, from
this record, whether any increase or decrease in workload occurred in
setting 1981 minimum standards.
10. There have been times when the minimum standards have been
inaccurate. On these occasions adjustments have been made in staff and
funding requirements; and employees have been advised that the
standards were unrealistic, and that management was going to ignore
them. In 1979, in DCB, the Branch Chief called in the employees and
said that "they had only two employees meeting the Standards and that
they were throwing out Standards-- they weren't even going to supply
them to employees that year." (TR34).
11. On January 2, 1980, the Branch Chief of DCB, Betti Carmer, sent
a memorandum to all employees in DCB to which was attached the 1980
Minimum Standards. The memorandum stated that were "(b)ased on 1979
experience, guidelines from the National Office as to changes in
processing which are programmed for 1980, and the production goals we
must meet to maintain the scheduled cost effectiveness . . . ." (REx-3).
12. By December 1980, Edward L. Howard had become Branch Chief in
DCB at FSC. On December 17, he gave an undated document to Ron Knod,
the Chief Steward for Chapter 97. The document has, as an attachment,
proposed minimum standards in DCB for 1981. See GCEx-861A. This
undated document states that the proposed standards were "(b)ased on
1980 experience, guidelines from the National Office, and the production
goals we must meet to maintain the scheduled cost effectiveness . . . ."
(GCEx-861A).
13. On December 24, 1980, Mr. Knod made a demand on the FSC Director
for negotiations over the substance, impact, and implementation of the
proposed standards for 1981 in the DCB.
14. On December 31, 1980, Mr. Knod submitted to the FSC Director a
list of proposals. They were as follows:
1. The minimum acceptable rates will be 70% of the peer group
average.
2. Employees having a difficult time reaching or maintaining
established standards will be given a reasonable amount of
intensive training.
3. No corrective action letters will be issued until an agreed
upon training schedule has been prepared and implemented.
4. Prior to dismissing an employee for not meeting the
established standard in Quantity and/or Quality, such employee
will be reassigned to other areas, as vacancies occur.
Corrective action letters issued to employees will identify:
1. Quantity and Quality deficiency.
2. The corrective actions that management expects the employee
to take.
3. The specific steps that management intends to take in
assisting the employee in correcting his or her deficiency.
(GC Ex-861-C).
15. The December 31, 1980 letter of Mr. Knod, submitting the
proposals, stated that: "We are prepared to meet and discuss the
proposals as soon as ground rules are established." (GC Ex-861-C).
16. The ground rules dispute centered solely on the location for
negotiations. It was the Respondent's position that negotiations would
only be conducted at the FSC. The final position of the Union was that
negotiations be conducted on an alternate basis, at the FSC and at the
Union office. According to the General Counsel, this dispute ultimately
went to impasse and was referred to the Federal Services Impasses Panel,
which has rendered a decision. See TR7-8.
17. On December 31, 1980, Mr. Howard addressed a memorandum to all
employees in the DCB to which was attached the 1981 "Minimum Standards."
It states that the standards are "based on past history and new data
requirements . . . ." (R Ex-4).
18. On January 2, 1981, Managers of the DCB held unit meetings with
employees and announced the implementation of the minimum standards for
1981. No negotiations with the Union occurred regarding the 1981
minimum standards.
19. As of the month of the hearing, July 1981, it was known that a
few employees were reassigned because of not meeting the 1981 minimum
standards. They were reassigned to other branches where there is less
potential in terms of grades. Failure to meet minimum standards also
resulted in counselling, recording of performance deficiency, and
termination, both prior to and during the 1981 season. Probationary
employees in DCB have been terminated for failure to meet minimum
standards. Promotions are not generally given to an employee who is not
meeting minimum standards.
Discussion and Conclusions in Case No. 9-CA-861
It is an accepted principle of Federal labor relations law that an
agency is required to give the exclusive representative prior notice and
the opportunity to negotiate regarding changes in working conditions
that materially affect bargaining-unit employees. See, e.g. Office of
Program Operations, Field Operations, Social Security Administration,
San Francisco Region and Council of District Office Locals, American
Federation of Government Employees, San Francisco Region, 5 FLRA No. 45
(1981). In cases cited in the General Counsel's brief, statutory
violations were found based upon unilateral implementation of a change
in an existing time frame for case processing (Department of Treasury,
Internal Revenue Service, Jacksonville District and National Treasury
Employees Union, 3 FLRA No. 103 (1980); change in the use of on-site
case reviews and test checks between travel vouchers (Internal Revenue
Service, Washington, D.C. and National Treasury Employees Union, 4 FLRA
No. 68 (1980); cancellation of certain promotion practices, (Department
of Defense, Department of the Navy, Naval Ordinance Station, Louisville,
Kentucky and Local Lodge 830, International Association of Machinists
and Aerospace Workers, AFL-CIO, 4 FLRA No. 100 (1981); changes in the
level of review for evaluating employees (San Antonio Air Logistics
Center (AFLC) Kelly Air Force Base, Texas and American Federation of
Government Employees, AFL-CIO, Local 1617, 5 FLRA No. 22 (1981); and a
change in a definition used in evaluating employees resulting in new
factors being considered (Department of Health and Human Services,
Social Security Administration, Office of Program Operations and Field
Operations, Sutter District Office, San Francisco, California and
American Federation of Government Employees, Local 3172, AFL-CIO, 5 FLRA
No. 63 (1981).
In this case, the General Counsel argues that the 1981 changes in
minimum standards resulted in some being raised, and that this resulted
in "an increase in performance standards," with "actual substantial
impact" on employees, as well as a great "potential impact." (GCBr 9).
Respondent concedes that a change in numerical standards did occur; but
Respondent argues that this change did not reflect a change in working
conditions, "rather the change in numbers is necessary to insure that
the condition of employment-- the speed of work required for retention--
remains the same." (RBr6).
The facts established in this case support the position of
Respondent. Yearly changes are regularly made in numerical standards
based upon the actual experience of employees during the past year, with
adjustments made, up or down, depending upon any known changes for the
coming year. If these annual adjustments were not made, employee
workloads would change. Thus, the system is designed to keep the
employee workload constant, from year to year. When the system works
imperfectly as it has on occasions in the past, the employees are told
that the minimum standards will be ignored for that year; and
Respondent makes adjustments in its staff and funding. The General
Counsel's brief points at no evidence of record that the system changed
in 1981. See GCBr2-11. Accordingly, it is concluded the General
Counsel has not met the burden of proving that an unfair labor practice
occurred, as alleged in the Complaint in Case No. 9-CA-861. This
resolution makes unnecessary a resolution of the other issues raised by
the parties in Case No. 9-CA-861.
Case No. 9-CA-538
In Case No. 9-CA-538, the Complaint alleges that, since on or about
March 18, 1980, Respondent has refused to bargain with the Union
regarding a unilateral change implemented by Respondent concerning the
acceptable standards for within-grade wage increases, conditions of
employment, thereby engaging in unfair labor practices in violations of
Sections 7116(a)(1) and (5) of the Statute.
Findings of Fact (continued)
20. On February 8, 1979, employees in the Accounts Maintenance Unit
("AMU") at FSC were advised, by memorandum, of the "(p)erformance
standards" required of them for "continued employment." (GC Ex-538 A).
The standards were attached. An attached chart, labeled "Acceptable
Standards," showed rates for quantity and quality for grades GS-3
through GS-7 employees. The rate of 2.3 was set as the quantity which
had to be maintained by a GS-6 from July to December.
21. On October 24, 1979, the Chief of the AMC at FSC advised a GS-6
employee in the unit, Ruth Ann Patterson, that her present level of
performance made it impossible for the Chief to recommend her for a
within-grade increase. Ms. Patterson was to complete the waiting period
for her increase on January 11, 1980. Ms. Patterson was told that the
"Acceptable Standard" for her grade, during the period from August 25,
1979 through October 13, 1979 was 2.5 for quantity. (GS Ex-538 B-1).
Also discussed with Ms. Patterson was the fact that her case management
resulted in a high percentage of old-age cases. On October 26 the Chief
sent Ms. Patterson a memorandum repeating the above, and informing her
that her work would be reviewed at least once every two weeks and help
provided to her, upon request. Ms. Patterson was also informed, in the
memorandum, that no final determination would be made on certifying her
as performing at an "Acceptable Level of Competence" until the date her
within-grade was due. (GC Ex-538 B-1). In the memorandum, an apology
was made for not giving Ms. Patterson the 80-day-advance notice to which
she was entitled, under the Agreement. On November 6, the memorandum
was amended to inform Ms. Patterson that her percent of old-age cases
had to be down to 15 percent from a present 25 percent.
22. Sometime during the winter of 1979, Ms. Patterson filed a
grievance over having a within-grade denied because she was not
achieving a standard which was higher than the "Minimum Standard."
(TR124). She furnished her Union steward with a copy of the October 26
memorandum from the Chief of the AMU.
23. Taking the view that Ms. Patterson was being subjected to a
"second Standard," Ronald Knod, Chair of the Negotiations Committee of
Chapter 97, made a demand, on November 7, 1979, for negotiations with
the FSC over the substance, impact and implementation of the "acceptable
standards for career ladder promotion" in the AMU. (TR127 and GC Ex-538
C). Mr. Knod has been Chief Steward since January 11, 1980. His
employment history at FSC has not adduced.
24. On November 17 a labor-management meeting was held on the
negotiations demand of November 7. Management representatives stated
that management had always applied a second Standard for within-grade
increases.
25. On December 28, 1979, the Director of the FSC sent a memorandum
to Mr. Knod, in which he stated that he had been unable to identify a
change in past practice that might make the matter negotiable. He
nevertheless asked the Union to forward its proposals on the matter
before he made a final determination.
26. On January 11, 1980, Chapter 97 forwarded one proposal. It was
as follows:
THERE SHOULD BE ONE STANDARD. IF THE EMPLOYEE IS BELOW
THE
STANDARD ADDITIONAL TRAINING SHOULD BE ALLOWED. IF THE
EMPLOYEE
IS ABOVE THE STANDARD THEN HE/SHE SHOULD BE ACCEPTABLE FOR
ALL
PROMOTION ACTIONS, SUCH AS, CAREER LADDER, STEP INCREASES,
ETC.
(GC Ex-538 E).
27. On March 18, 1980, the Director responded that there had been no
change in criteria used in determining when to career promote employees
in AMU and, therefore, there was no obligation to bargain, that
employees were promoted "when the employer determines that an employee
is capable of performing at the next higher level," and that this
"continuing practice" was in accord with Article 6, Section 14 of the
Agreement. (GC Ex-538 F).
28. Article 6, Section 14 of the Agreement provides:
All employees in career ladder positions will be promoted on
the first pay period after a period of one year or whatever lesser
period may be applicable provided the Employer had certified that
the employee is capable of satisfactorily performing at the next
higher level.
(Jt. E-1. 10).
29. On January 24, 1980, the Chief of the AMU sent a memorandum to
Ms. Patterson advising her that she was still not performing at an
"acceptable level of competence." (GC Ex-538 G). While Ms. Patterson
had achieved a cumulative quantity rating of 2.5, her percent of old-age
cases was considerably over the "acceptable" 15 percent. (GC Ex-538
G.2).
30. The President of Chapter 97, Donald Geiger, testified that
Minimum Standards are used to determine whether an employee is entitled
to within-grade increases and career-ladder promotions, as well as
probationary dismissals and terminations. See TR21 and 26. Until
receipt of a copy of the October 26 memorandum to Ms. Patterson, he was
unaware that FSC was using two standards-- one for retention on a job
and another for within-grade increases. He was unaware of any employee,
other than Ms. Patterson, ever being denied a within-grade increase for
failure to meet a standard higher than the "Acceptable Minimum Standard
Quantity." (TR131). He also testified that "Acceptable Level of
Competence was a "totally separate" item from a within-grade increase.
(TR132).
31. Testifying on behalf of the agency was Juda Levi, a labor
relations specialist at FSC who has been so employed since the FSC
opened in 1972. His principal duties have included advising managers as
to the procedure for withholding within-grade increases in AMU under the
Federal Personnel Manual, the Internal Revenue Service Manual, the
Internal Revenue Service Manual, and the Union Agreement. He testified
that achievement of Minimum Performance Standards had never been used as
the sole basis for an Acceptable Level of Competence Determinations, and
that an Acceptable Level of Competence Determination is needed for an
employee to warrant a within-grade increase. Mr. Levi, by virtue of his
work at FSC, is knowledgeable as to what standard has been used at FSC
for determining eligibility for within-grade increases. He gave his
testimony in a confident manner. To the extent that the testimony of
Mr. Levi is contrary to testimony given by Mr. Geiger, as set forth in
finding 30, supra, I credit the testimony of Mr. Levi. Mr. Levi
appeared to be more confident of his facts about how performance
standards were used at FSC and held positions at FSC which would make
him more knowledgeable. Specifically, I find that the FSC has always
used standards other than Minimum Performance Standards for determining
eligibility for within-grade increases.
32. In determining eligibility for within-grade increases, the FSC
has acted pursuant to its interpretation of Article 9 of the Agreement,
which provides, in pertinent part:
Section 1
Acceptance level of competence determinations and annual
performance ratings will be made in a fair and objective manner
and will be made only on the basis of the work requirements of the
particular position or specific work standards as may have been
established by the Employer for the position; provided, however,
that a determination that an employee is not performing at an
acceptable level of competence will not be used to dispose of
questions of misconduct. /7/
Section 2
At least ninety (90) days prior to the date an employee is
eligible for a within-grade increase, the Employer will review the
work of the employee. When a supervisor's evaluation leads to a
conclusion that the employee's work is not at an acceptable level
of competence, the supervisor will provide the employee in
writing, at least eighty (80) days before the employee is eligible
for the within-grade increase the following:
A.
An explanation of those aspects of performance in which the
employee's services fall below an acceptable level;
B.
Advise as to what the employee must do to bring his/her
performance up to the acceptable level;
C.
A statement that his/her performance may be determined as being
at an acceptable level unless improvement to an acceptable level
is shown; and
D.
A statement that he/she has until the end of the waiting period
to bring his/her performance up to an acceptable level.
(Jt Ex-1.12).
33. J. Russell Bowden, the Union's Chairman of the negotiation team
in 1975 (see footnote 6, supra) testified that there were no
discussions, in 1975, concerning performance standards in relationship
to within-grade increases, and that the only discussions on standards
concerned the competitive-promotion program.
Discussion and Conclusions in Case No. 9-CA-538
To prevail in this case the General Counsel must establish that the
agency made a change in the way it determines eligibility for a
within-grade increase. The evidence which has been credited reveals no
such change. The system at FSC has never used Minimum Standards as the
sole basis for determining eligibility for a within-grade increase.
Minimum Standards determine whether an employee is eligible for
"continued employment." See finding 20, supra. Whether an employee is
to be given a within-grade increase has been treated by Respondent as a
different matter, requiring a higher standard. This is in accord with
Federal regulations. See 5 C.F.R. 531.407(c) which provides:
In making his determinations, the head of an agency (or) his
designee . . .
(i) Shall not award within-grade increases to employees who do
not clearly meet the statutory standard for such award,
recognizing that for these increases performance must be of
sufficient level to merit a pay increase, not just adequate for
retention on the job; . . .
Management at FSC complies with this Federal regulation, and also its
interpretation of the requirements imposed upon it by Article 9 of the
Agreement, set forth in finding 32, supra. It establishes work
standards necessary to warrant a within-grade increase, notifies the
employee in writing and well in advance of the eligibility date for the
increase, of any aspects of performance falling below an acceptable
level; just what the employee must do to bring performance up to an
acceptable level, that the employee may be determined as performing at
an unacceptable level unless improvement to an acceptable level is
shown, and that the employee has until the end of the waiting period to
bring performance up to an acceptable level. This is what the Chief of
the AMU did in the case of Ms. Patterson. The only deviation from the
Agreement was failure to give Ms. Patterson the full 80 day's notice
required, a failure which is not raised as a issue by the General
Counsel.
Union officials obviously interpret the Agreement differently, and
were unaware of how management at FSC was interpreting it until the
denial of Ms. Patterson's within-grade increase. The difference in
interpretation is understandable as the Agreement is not a model of
clarity. The General Counsel concedes that it is "susceptible to
numerous interpretations." (GC Br 15). Nevertheless, an agency does not
commit an unfair labor practice for following what is not an
unreasonable interpretation, as here.
The Complaint in Case No. 9-CA-538 should be dismissed. The
conclusions reached herein make unnecessary the resolution of other
issues raised by the parties.
Case No. 9-CA-687
In Case No. 9-CA-687, the Complaint alleges that since on or about
July 31, 1980, Respondent has refused to bargain in good faith with the
Union, in violation of Sections 7116(a)(1) and (5) of the Statute. The
Complaint also alleges that Respondent has refused to comply with
Section 7114(a)(2)(A) of the Statute, in violation of Section 7116(a)(1)
and (8) of the Statute. The violative act is alleged to be the
prevention of Chief Steward Ron Knod from consulting with and/or
advising Steward Bertha Wallace during a grievance meeting and the
refusal to allow the Chief Steward to be present to assist the Steward
during the course of a first-step grievance meeting concerning a
bargaining-unit employee.
Findings of Fact (continued)
34. Article 5 of the Agreement provides for a maximum of 20 steward
positions, including that of Chief Steward. Stewards represent
employees in the area that they are designated to represent, and meet
with members of the bargaining unit and/or representatives of management
to resolve problems informally or through the steps of the grievance
procedure. The duties of the Chief Steward include the day-to-day,
labor-management relationship at Respondent's facilities.
35. Article 33 of the Agreement sets forth the grievance procedure.
It provides that: at Step 1, the meeting "shall take place between the
supervisor, the aggrieved, and his/her steward"; at Step 2, "between
the Section Chief, the aggrieved employee, and his/her steward"; at
Step 3, "between the office of the Branch Chief, the aggrieved, his/her
steward, and/or the chief steward"; at Step 4, "between the Division
Chief's office, the aggrieved, his/her steward, the chief steward, and
the NTEU Chapter president"; and at Step 5, "between the Center
Director's office, the aggrieved, his or her steward, the Chief Steward,
the Chapter President, and/or a NTEU National Representative." (Jt
Ex-1.29-30).
36. The only witness to testify concerning the intent of the
parties, in agreeing to Article 33, was the Union's chief negotiator of
the 1975 Agreement, J. Russell Bowden. Mr. Bowden testified that at the
time of the negotiations, management hoped to have some settlements in
the early stages of the grievance procedure and, therefore, proposed to
limit the number of Union representatives who would get official time to
represent the employee. He testified that Article 33 was not intended,
in any way, to limit who could be at the meetings. He offered, in
support of his testimony, an annotated copy of the 1975 Agreement which,
he testified, was prepared by management for guidance of its management
people in understanding "the thinking of the Management team at the
negotiating table as to what was in the contract." (TR148). Respondent
did not object to the receipt into evidence of the annotated copy and
adduced no evidence disavowing its purpose. The annotated copy states
that:
Only the local union steward may represent the employee on
official time in Step 1. If any other Union representative
appears at Step 1, he/she must be on annual leave or leave without
pay.
(GC Ex 687-A.99). The testimony of Mr. Bowden, on this point, is
credited.
37. Another agreement, separate and distinct from the one covering
the instant dispute, was negotiated in 1975 between the Union and the
National Office of IRS. That agreement covered the Office of
International Operations. Its terms and conditions were separate and
unrelated to the terms and conditions contained in Joint Exhibit 1, and
covered a different bargaining unit. Prior to the instant dispute,
under Executive Order 11491, an unfair labor practice dispute arose as
to the intent of the grievance procedure in the National Office
agreement. See Internal Revenue Service National Office of Internal
Operations and National Treasury Employees Union, National Treasury
Employees Union Chapter 83, 8 A/SLMR 764, No. 1079 (1978) (hereinafter,
"IRS, 010"). In IRS, 010, no witnesses testified, on behalf of the
Union, as to the bargaining history of the grievance procedure in the
agreement.
38. Respondent adduced a Settlement Agreement signed by the FSC and
the Union on May 11, 1977, which states the understanding and agreement
of the parties as to the attendance by the Chief Steward at Step 1 and 2
grievance meetings. The Settlement Agreement states that:
On occasion it may be beneficial for training purposes to have
both the Chief Steward and Area Steward present at Steps 1 and 2
of grievance meetings. However, when both are present at such
meetings, the Chief Steward is not entitled to any form of
official time, bank time or otherwise, for that presence under the
Multi-Center Agreement II. In addition, when both are present at
such meetings, only one shall act as an active participant and
spokesperson.
(REx-8) Another local agreement of the parties specifies that the Chief
Steward may attend Step 1 and 2 grievance meetings when the Area Steward
is the grievant, and, on such an occasion, the Chief Steward will be on
official time for his presence. Whether or not the Chief Steward would
receive official time for attendance at the Step 1 and 2 grievance
meetings was "part of the issue" settled. (TR165).
39a. On July 31, 1980, Chief Steward Ronald Knod sought and received
approval from his Section Chief to be placed on a leave-without-pay
status, in order to attend a Step-1 grievance meeting with Area Steward
Bertha Wallace. Mr. Knod was deeply concerned about Ms. Wallace's
understanding of what was required of her as a steward during the
meeting, that is, the procedures, the things to observe, and how to best
represent the employee. He was equally concerned that she would not be
able to properly represent the grievant at the grievance meeting.
39b. When Mr. Knod, Ms. Wallace and the grievant arrived at the
meeting, they found Supervisor Tony Hawkins, Labor Relations Specialist
Ed Hansen, and Labor Relations Specialist Trainee, Diane Delgado, in
attendance. Upon entering the grievance meeting room, Mr. Hansen
questioned Mr. Knod as to what he was doing there. Mr. Knod responded
by saying that he was there in an approved leave-without-pay status "to
advise, assist and consult during the grievance meeting." (TR156).
After Mr. Knod so responded, Mr. Hansen and Mr. Hawkins left the room.
A few minutes later Ms. Delgado also left the room; and she did not
return. When Mr. Hawkins and Mr. Hansen returned to the room, Mr.
Hawkins advised Mr. Knod that he should not be at the meeting. He went
on to state that the grievant was represented by the Area Steward and
that the Agreement did not permit the Chief Steward to be present at the
meeting. The parties discussed the matter briefly; and Mr. Knod
reiterated the fact that he was not on official time, but was on his own
time. Mr. Knod objected to his exclusion from the meeting. He then
stated that he would obey management's decision that he should not
attend the meeting and that he would, under protest, leave.
39c. At that point, Mr. Knod did in fact leave the meeting, which
continued without his presence. The Labor Relations Specialist remained
"(t)o provide advice and assistance to the immediate supervisor of the
grievant." (TR167). No agency representative prevented the Area Steward
from leaving the grievance meeting to consult with any other Union
official.
Discussion and Conclusions in Case No. 9-CA-687
This Authority has expressly found that "it is within the discretion
of both agency management and labor organizations holding exclusive
representation rights to designate their respective representatives when
fulfilling their responsibilities under the Statute." American
Federation of Government Employees, AFL-CIO and U.S. Air Force, Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 4 FLRA
No. 39 (1980). In that case the Authority refused to limit the scope of
the union's selection of its designees to a particular organizational
unit. The Authority has also determined that an agency is obligated to
deal with the representatives selected by the exclusive representative,
unless it can establish that the representatives have engaged in some
kind of flagrant misconduct. Philadelphia Naval Shipyard and
Philadelphia Metal Trades Council, 4 FLRA No. 38 (1980).
Attendance at formal discussions is one of the incidents of
representation for which an exclusive representative is entitled to make
such a designation; and the failure to allow the Union to be
represented at a formal discussion is a violation of the Statute. See,
e.g., Department of Health, Education and Welfare, Region IV, Atlantic,
GA and National Treasury Employees Union, 5 FLRA No. 58 (1981) wherein
the Authority found violations of Sections 7116(a)(1), (5) and (8) based
on management's failure to give the union therein the opportunity to be
represented at a formal discussion.
Under Section 10(e) of Executive Order 11491, which controlled labor
relations in the Federal sector prior to the enactment of the Statute,
"formal discussions" were interpreted to include grievance meetings.
See e.g. U.S. Department of Army, Transportation Motor Pool, Ft.
Wainwright, Alaska, 3 A/SLMR 291, No. 278 (1973). The language of
Section 10(e) is nearly identical to that of Section 7114(a)(2)(A) of
the Statute. /8/ Section 7135 of the Statute continues in effect
decisions issued under the Executive Order "until revised or revoked by
the President, or unless superseded by specific provisions of this
chapter or by regulations or decisions issued pursuant to this chapter."
It thus seems clear that Section 7114(a)(2)(A) rights are involved here.
It is the contention of the General Counsel and the Union that which
Union representative or representatives can effectively represent the
interest of the Union and the grievant at a grievance meeting, such as
the one underlying the instant dispute, is a matter solely and
peculiarly within the knowledge of the Union and that, so long as the
Union is not demanding official time for all of its designees, and in
the absence of any "clear and unequivocal waiver," the Union has the
right, under Section 7114(a)(2)(A), to designate whomever it deems
appropriate to provide adequate representation. See GCBr 19 and UBr
2-3. The General Counsel and the Union are correct in this contention;
and Respondent does not appear to disagree. See RBr 21-25.
Respondent rests its case on the issue of waiver, agrees that "(t)he
waiver of a union right must be clear and unmistakable," and claims that
there was such a waiver here. Respondent relies upon the language of
Article 33 of the Agreement, negotiations leading up to it, and the two
local agreements reached at the FSC as to the circumstances under which
the Chief Steward might attend a Step 1 grievance meeting.
The language of Article 33, itself, is ambiguous. It states who
shall attend each step of the grievance machinery; but it does not
indicate that they are to be the only representatives in attendance.
In the negotiations leading up to the Agreement, according to the
evidence in this case, the parties did not evince an intent to limit
attendance at the meetings, only reimbursement. See finding 36, supra.
Obviously, management at the FSC does not feel restrained to
representation by only the supervisor, at the Step 1 grievance meeting,
even though only the "supervisor" is designated in Article 33. At the
grievance meeting here at issue, the FSC also had a Labor Relations
Specialist in attendance, to provide advice and assistance to the
supervisor. This is exactly what the Chief Steward here attempted to
do, for the inexperienced Union steward.
As to the two local agreements, they can be read as settling the
unofficial-time issue and do not really strengthen the cause of
Respondent in trying to demonstrate a clear and unmistakable waiver.
Respondent relies heavily on the IRS, 010 case, which concerned a
similar issue and held that a like agreement reached between the same
individuals, in the same year, constituted a waiver. See RBr. 22 and
25. In that case "special attention (was paid) to the language of the
agreement and the history of bargaining between the parties" (8 A/SLMR
at 768) and the only witness to the "history of bargaining" was
management's chief negotiator. Here, the reverse is true. Only the
Union's chief negotiator testified in this case; and his testimony was
supported by evidence of how the management team viewed the agreement.
See finding 36, supra. Thus IRS, 010 rests on a significantly different
record.
In this case the record compels a conclusion that the statutory
violations alleged did occur.
Case No. 9-CA-881
In Case No. 9-CA-881, the Complaint alleges that Respondent has
failed and is failing to bargain in good faith with the Union, in
violation of Section 7116(a)(1) and (5) of the Statute. The violative
act is alleged to be the temporary reassignment of a bargaining-unit
employee for a period of 30 days, the duration being a change in
practice, without prior notice to the Union or an opportunity for
impact-and-implementation bargaining. See Counts 7 and 10 of the
Complaint. Counts 9 and 10 allege a violation of Section 7116(a)(1) and
(5) by bargaining to impasse over the issue before informing the Union
that it had no obligation to negotiate over it.
Findings of Facts (continued)
40. A "detail" is the temporary assignment of an employee to a
position other the employee's own. Only details of more than 30 days
must be officially documents; and, as Respondent admits, 30-day-or-more
details "may affect certain things such as qualifications and pertinent
experience of employees," in seeking other FSC jobs. (RBr 30, fn. 13).
Details of less than 30 days may be documented, upon request of the
detailed employee. Details of both types frequently occur at the FSC.
41. The Computer Branch at FSC employs approximately 100 employees
and is divided into 3 sections-- the Computer Operations Section; the
Support and Control Section; and the Computer Specialists Section. The
Support and Control Section consists of a Control Unit, a Scheduling
Unit, and a Tape Library Unit (hereinafter, the "Library").
42. Work in the Library is the "least desired work" in the Branch.
(TR229). It is the start-off position for a totally unskilled,
inexperienced employee. The work is basically clerical in nature.
Grades range from GS-3 to GS-4, with one GS-5 and one GS-7 supervisor.
Employees in the Library work a nine-to-five, five-day workweek.
43. A position in the Computer Operations Section is considered a
promotion for an employee working in the Library. Work in Computer
Operations is technical in nature and involves knowledge of how to
operate equipment and to extract and merge data. Grades range from GS-5
to GS-9, with GS-7 as the journeyman grade. Work in the Computer
Operations Section is done on a seven-day-a-week, three-shift-a-day
basis. Employees rotate weekend duty-- two weeks on and two weeks off.
Staffing in this Section is kept at the maximum number of employees
needed; but the work is seasonal, with the period from September
through January being a slack one. During slack periods, employees are
detailed to other work, as needed. This Section operates in a separate
geographical location from the Library, and under a different
supervisor. The employees in the Section and the Library are not
measured individually by the quantity of work accomplished.
44. Details of employees from the Computer Operations Section to the
Library have been common for eight years. Up until October 1980,
however, they were for a few hours, one day, or two days, at the most,
and on a volunteer basis.
45. In or around early September 1980, an employee was furloughed,
for budgetary reasons, from the Library.
46. In October 1980, the day shift manager of the Computer
Operations Section designated five Section employees, with previous
experience in the Library, to consecutive 30-day details in the Library.
This was done without notice to the Union, or an opportunity for the
Union to negotiate as to the impact and implementation of the details.
The five designated were the lowest-graded employees in the Section--
one was at GS-5 and four were at the GS-7 level. They did not volunteer
for the details. One had been promoted out of the Library within the
year. No permanent record of the details was made for personnel
purposes. One of the five only worked for two weeks of the detail
before being called back to the Operations Section because of increased
work needs in that Section. Some were called back to do their regular
work, while on the detail to the Library, then sent back to the Library,
and then called out to answer questions about their regular work in the
Computer Operations Section.
46a. In October 1980 one of the employees detailed to the Library
advised the Union of the details. A demand to negotiate was submitted
on October 8, to the Director of the FSC. Negotiations ensued. One
Union proposal was to adopt an Article of the 1981 Master Agreement for
the National Office. On November 4, 1980, the parties agreed that they
were at an impasse; and a Federal mediator was called upon for
assistance. In December 1980, the mediator stated that he was going to
be unable to help the parties reach an agreement on the issue of
reassignment. On February 6, 1981, the Union received a memorandum from
the Director of the FSC, in which he declared that there was no
obligation to negotiate the matter "on grounds that a past practice
exists at the Center to effect reassignments as unilaterally determined
by management." (GC Ex-881N).
47. While the negotiations were ongoing, the five employees served
their details to the Library. They were not evaluated while on their
details. They lost one month of experience at a higher-graded work,
while working under a contract that called for evaluations based on past
performance for six months, in order to apply for a position. One was
told that the detail could have lasted for six months. There was
concern over the fact that promotions require so much pertinent
experience time; and the employees did not know how the 30-day period
was going to effect this. Some were not told, in advance, who their
supervisor was to be, or how scheduled leave would be affected by the
detail. /9/ No leave was actually affected by the details.
48. The workload of the employees remaining in the Operations
Section, during the 30-day details, was not affected.
49. Grievances have arisen when management has failed to consider or
consult prior supervisors in preparing evaluations for an employee, when
the employee has been assigned to more than one position during the
rating period. An employee could possibly miss a promotion while the
situation was being remedied. There was no evidence that this occurred
to any of the five employees detailed to the Library during the period
here at issue.
Discussion and Conclusions in Case No. 9-CA-881
Respondent argues that the General Counsel has failed to meet the
burden of demonstrating a change in a condition of employment arising
from a change in the duration of a detail from two to thirty days, and,
even assuming arguendo that a change occurred, that no employee was
actually adversely affected.
As to whether a change occurred, it must be concluded that one did.
The established practice of having two-day-or-less details was quite
different from the 30-day detail here at issue. The two-day-or-less
details were casual and on a volunteer basis, with apparently no change
in supervision involved. The 30-day details were not on a volunteer
basis; supervision did change; and the duration was significantly
longer, particularly in view of the fact that the work on the detail was
the least-liked work in the Branch.
When unilateral changes in working conditions do occur, the Federal
Labor Relations Authority has adopted the reasoning developed in
Executive Order 11491 cases, and applied a "substantial impact rule" for
determining whether an unfair labor practice has occurred. See, e.g.,
Office of Program Operations, Field Operations, Social Security
Administration, San Francisco Region and Council of District Office
Locals, American Federation of Government Employees, San Francisco
Region (hereinafter, "SSA, SF") 5 FLRA No. 45 (1981) and page 3 of the
decisions therein confirmed. What constitutes "substantial impact"
depends upon the particular circumstances involved. Thus, under the
Executive Order, a substantial one was found that involved only a
one-day change in hours of duty for three employees. See Internal
Revenue Service, Austin Service Center and National Treasury Employees
Union, NTEU Chapter 72 ("IRS, Austin"), 2 FLRA 769, No. 97 (1980), a
case relied upon by Respondent here, at page 27 of its brief. The
Authority, in IRS Austin "not(ed) particularly the fact that these
employees were compelled to work two consecutive shifts with only a
brief interlude for rest." (Id. at 771).
Here, Respondent argues that a change involving only "a few employees
in a portion of one Branch working on one shift does not bear such a
relationship to the overall unit so as to constitute a change in general
working conditions." (RBr 28). But neither did the change ruled as
having a substantial impact by the Authority in one case Respondent
cites, IRS, Austin, which involved a change of only one day for three
employees. Of course, proof of a sweeping impact upon many bargaining
unit-employees would establish a stronger case. But such a wide scope
is not a sine qua non to finding that a change is substantial enough to
involve a bargaining obligation. The circumstances are important too.
Consider the circumstances here. Previously, in detailing skilled
employees in the Operations Section to perform unskilled work in the
Library, management had done so on a volunteer basis and for only a
short time, always less than two days and sometimes for only a few
hours. Then, on October 1980, five skilled employees in Operations,
non-volunteers all, were designated to perform 30-day stints at the
unskilled work in the Library-- work which they had performed before and
been promoted from to their present positions. They were left uncertain
as to how this would affect their pertinent-experience qualification for
promotion to other positions at the FSC. They were left uncertain as to
whether scheduled leave would be affected. Some were not told who their
supervisor was to be. All of these uncertainties could have been
resolved had impact-and-implementation bargaining preceded their
assignments. These uncertainties and the prolonged assignment to
perform unskilled work, which was also the least-liked work in the
Branch, created a serious morale problem for the employees involved.
Since details are common throughout the FSC, such a marked departure
from established practices by management is a matter of concern,
generally. This is particularly true since furloughs for budgetary
reasons, which triggered the details here at issue, may become more
frequent, causing more such details, in these days of shrinking agency
budgets.
In the spirit of IRS, Austin, I conclude that the change of practice
here involved had a substantial impact upon the five employees, and that
the failure to give the Union prior notice of it, and an opportunity to
bargain, was not a de minimis violation of Section 7116(a)(1) and (5),
even though the proven effect of the change upon the five employees was
largely a matter of morale over the summary way in which the undesirable
details were handled, and the uncertainties that ensued. Poor employee
morale in the Federal government is not a matter to be lightly treated.
It can seriously impact upon the effective and efficient conduct of the
public business, and is one of the considerations underlying passage of
the Federal Service Labor-Management Relations Statute. See Section
7101.
When Respondent changed its practice of detailing employees, without
notice to the Union and an opportunity to bargain over the impact and
implementation of the change, a Section 7116(a)(1) and (5) violation
occurred.
Count 9 of the Complaint in Case No. 9-CA-881 is without merit and
should be dismissed. It bases an allegation of an unfair labor practice
upon the fact that Respondent did bargain to impasse upon the details
before informing the Union that it had no obligation to bargain over the
matter. As Respondent argues, the Statute favors amicable resolution of
disputes; and an agency may enter into bargaining even though it
believes it has no legal obligation to do so. See RBr 33, fn. 14. It
is noteworthy that the General Counsel ignores Count 9 in its argument
and seeks no relief as to it. See GC Br 27-30.
Reconsideration of Ruling on Motion to Dismiss
Finally consideration must be given as to whether "Internal Revenue
Service, Washington, D.C." ("IRS") should have been named as a party
respondent in Case Nos. 9-CA-881 and 687. /10/ In its brief, Respondent
argues that its motion to dismiss this party, as a named respondent,
should be granted because no evidence was adduced "that any act alleged
to be in violation of the Statute was committed by or at the direction
of Internal Revenue Service, Washington, D.C." (RBR 2). The act alleged
and here found to be violative of the Statute, in Case No. 9-CA-687
pertains to attendance at grievance procedure meetings and, in Case No.
9-CA-881, to details (or temporary reassignments) of bargaining-unit
employees. The evidence shows that the FSC is a component for whom IRS
bargains at a national level. Under the Agreement now in effect,
Article 7 deals with the subject of "Details" and Article 33 deals with
the subject of "Grievance Procedure." (Jt Ex-1. pages 11 and 29-31).
Negotiations to replace the current Agreement have been underway for
several years, at the national level. Interpretation of the Agreement
bargained at the national level, in 1975, was an issue in Case No.
9-CA-687. Under these circumstances, IRS was properly named as a party
respondent in these cases. Compare Internal Revenue Service Washington,
D.C. and Internal Revenue Service, Hartford District Office, 4 FLRA No.
37 (1980) in which the Authority affirmed a decision which had dealt
with a similar issue and relied, in part, upon the fact that IRS
negotiated the collective bargaining agreement on behalf of its District
Offices. See page 7 of Judge Arrigo's affirmed Decision in that case.
While the evidence adduced supports the naming of IRS as a party
respondent, it does not show any need to order relief as to it. There
is no proof that IRS ordered the FSC to act as it did, or that the
actions of the FSC are typical of other components of IRS.
Ultimate Findings and Order
A. In Case Nos. 9-CA-861 and 538 the General Counsel has now shown,
by a preponderance of the evidence, that the violations alleged have
occurred.
Accordingly, it is ORDERED that the Complaints in Case Nos. 9-CA-861
and 538 should be and hereby are dismissed.
B. In Case No. 9-CA-687, the General Counsel has established, by a
preponderance of the evidence, that violation of Sections 7116(a)(1),
(5) and (8) have occurred.
Accordingly, it is ORDERED, in Case No. 9-CA-687, pursuant to Section
7118(a)(7)(A) of the Federal Service Labor-Management Relations Statute,
5 U.S.C. 7118(a)(7)(A) (Supp. III, 1979), and Section 2423.29(b)(1) of
the Rules and Regulations of the Federal Labor Relations Authority, 45
Fed.Reg. 2423.29(b)(1), that Internal Revenue Service, Fresno Service
Center, Fresno, California:
1. Cease and desist from:
(a) Precluding designated representatives of the exclusive
representative, National Treasury Employees Union, from attending
grievance procedure meetings on their own time;
(b) Failing and refusing to bargain in good faith with the
exclusive representative, National Treasury Employees Union, by
refusing to recognize its designation of representatives for
purposes of attending grievance procedure meetings; and
(c) Interfering with the right of the exclusive representative,
National Treasury Employees Union, to designate representatives of
its own choosing for purposes of attending formal discussions
concerning grievances.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Give the exclusive representative, National Treasury
Employees Union, the opportunity to designate which
representatives shall attend grievance procedure meetings, on
their own time;
(b) Post at the Fresno Service Center, Fresno, California,
copies of the attached notice marked "Appendix A," on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt
of such forms, they shall be signed by the Director of the Fresno
Service Center and posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices are customarily posted. Reasonable
steps shall be taken to ensure that said notices are not altered,
defaced, or covered by any other material; and
(c) Notify the 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.
C. In Case No. 9-CA-881, the General Counsel has established, by a
preponderance of the evidence, that violations of Section 7116(a)(1) and
(5) have occurred.
Accordingly, it is ORDERED, in Case No. 9-CA-881, pursuant to the
authority cited in B, supra, that Internal Revenue Service, Fresno
Service Center, Fresno, California:
1. Cease and desist from:
(a) Making substantial changes in practices concerning details,
such as the 30-day detail of non-volunteering, bargaining-unit
employees to the Computer Tape Library, at the Fresno Service
Center, Fresno, California, without first notifying the exclusive
representative, National Treasury Employees Union, and giving it
the opportunity to bargain over the impact and implementation of
the changes.
(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-Relations Management Statute.
2. Take the following affirmative action:
(a) Notify the exclusive representative, National Treasury
Employees Union, of any intended decision to make substantial
changes in practices concerning details of bargaining-unit
employees at the Fresno Service Center and, upon request, meet and
confer, to the extent consonant with law and regulations, on the
impact and implementation of such decision.
(b) Post at the Fresno Service Center, Fresno, California,
copies of the attached notice marked "Appendix B," as ordered in
B2(b), supra.
(c) Notify the Federal Labor Relations Authority, as ordered in
B2(c), supra.
It is further ORDERED, in Case No. 9-CA-881, that Count 9 of the
Complaint be dismissed.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: December 30, 1981
Washington, D.C.
APPENDIX A
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 preclude designated representatives of the National
Treasury Employees Union, from attending grievance procedure meetings on
their own time.
WE WILL NOT fail or refuse to bargain in good faith with National
Treasury Employees Union, by refusing to recognize its designation of
representatives for purposes of attending grievance procedure meetings.
WE WILL NOT interfere with the right of the exclusive representative
to designate the representatives of its own choosing for purposes of
attending formal discussions concerning grievances.
WE WILL NOT, in any like or related manner, interfere with, restrain
or coerce employees in the exercise of rights guaranteed by the Federal
Service Labor-Management Relations Statute.
WE WILL allow Chief Steward Ronald Knod, or any other designated
Union representative, to attend grievance meetings at his or her
discretion on his or her own time.
(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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 9,
whose address is: 530 Bush Street, Room 542, San Francisco, CA, 94108,
and whose telephone number is: (415) 556-8105.
APPENDIX B
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 make changes in practices concerning working conditions,
such as the 30-day details of non-volunteering, bargaining-unit
employees to the Computer Tape Library, without first notifying the
exclusive representative, National Treasury Employees Union, and giving
it the opportunity to bargain over the impact and implementation
thereof.
WE WILL NOT, in any like or related manner, interfere with, restrain
or coerce employees in the exercise of rights guaranteed by the Federal
Service Labor-Management Relations Statute.
WE WILL, prior to the implementation of changes in practices
concerning working conditions of bargaining-unit employees, give the
exclusive representative, National Treasury Employees Union, ample prior
notice of such changes, and the opportunity to fully negotiate regarding
the impact and implementation thereof, consonant with applicable law and
regulations.
(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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 9,
whose address is: 530 Bush Street, Room 542, San Francisco, CA, 94108,
and whose telephone number is: (415) 556-8105.
--------------- FOOTNOTES$ ---------------
/1/ Untimely exceptions were filed by the General Counsel in Case No.
9-CA-861, and therefore they have not been considered. No exceptions
were filed to the Judge's decision in regard to Case Nos. 9-CA-538 or
9-CA-687.
/2/ Additionally, noting particularly that no exceptions were filed
to the Judge's other finding in Case No. 9-CA-881 that no violation of
section 7116(a)(1) and (5) has been established concerning the
Respondent's alleged subsequent bargaining to impasse concerning the
instant change and then informing the Union that it had no obligation to
negotiate, the Authority adopts such finding and shall order dismissal
of that allegation of the complaint.
/3/ The Complaints in Case Nos. 9-CA-690, 821, 822, 823, 846, 847,
860, 862, 863, and 864 were withdrawn. Case Nos. 9-CA-822 and 847 were
postponed indefinitely.
/4/ The transcript is corrected as shown in Appendix C to this
Decision. The Exhibit marked as "GC881 A-N" consists of the "Formal
Documents" in this case. It was offered as General Counsel's Exhibit
No. 1. See page 6 of the transcript. It has been remarked to reflect
its proper designation.
/5/ Abbreviations used herein are as follows. "GC Ex" refers to
exhibits of the General Counsel, and "R Ex" to those of Respondent. "Jt
Ex" refers to Joint Exhibit 1. "TR" refers to the transcript. "GC Br"
refers to the brief of the General Counsel; "R Br" to that of
Respondent; and "U Br" to that of the Charging Party, the National
Treasury Employees Union.
/6/ This finding is based upon the testimony of Albert Przecha. He
has been an official at FSC since it opened in 1972. He was the Chief
of the Division under which DCB operated in 1972. He has been involved
in the workings of the MPSS since the FSC opened. He was a
knowledgeable, forthright witness who appeared to give honest answers.
Some contrary testimony was given by two Union officials; but
neither were shown to have experience equivalent to that of Mr. Przecha
in relation to the MPSS. J. Russell Bowden has been an employee of the
Union for 10 years. Prior to his employment at the Union he was an IRS
employee for 26 years, partly as an agent and partly as a manager. His
present duties include lobbying and negotiating labor contracts. He was
Chairman of Union negotiation team in 1975. He testified that during
negotiations on the 1975 Agreement: "There were no negotiations
concerning Minimum Standards and there was no knowledge at the Union
teams disposal that there was such a thing as Minimum Standards."
(TR37). The President of the Chapter 97, Mr. Geiger, testified that he
was unaware of the existence of Minimum Standards at the FSC, at least
on a "widespread" basis, when the 1975 Agreement was negotiated. (TR25
and see also TR32) Mr. Geiger was not shown to have held Union office
before 1977, or to have working knowledge of the MPSS.
/7/ Prior to the enactment of the Civil Service Reform Act, an annual
performance rating of employees was required by 5 U.S.C. 4308 (1978) and
5 C.F.R. 430.101 et seq. (1978). This statutory provision was
eliminated by a new Chapter 43 of 5 U.S.C., effective January 10, 1979.
Within-grade increases are provided for in 5 U.S.C. 5335 and 5 C.F.R.
5531.401 et seq. An employee is periodically entitled to a within-grade
increase if "the work of the employee . . . is of an acceptable level of
competence as determined by the head of the agency." 5 U.S.C.
5335(a)(3)(B); see also 5 C.F.R. 531.407.
/8/ Section 10(e) states, in relevant part:
. . . The labor organization shall be given the opportunity to
be represented at formal discussions between management and
employees or employee representatives concerning grievances,
personnel policies and practices, or other matters affecting
general working conditions of employees in the unit.
/9/ In this regard, I credit the testimony given at TR197. Although
the Chief of the Operations Section testified, on direct, that all five
were told who their supervisor would be (TR225), his testimony on cross
was that he had no direct knowledge that all five were told, and seemed
less confident that he, himself, had told three of them. See TR 230.
/10/ Since the Complaint in Case No. 538 is being recommended for
dismissal, resolution of this issue, as it pertains to that case, is
unnecessary.