16:0777(106)CA - IRS, Ogden Service Center, Ogden, UT and NTEU -- 1984 FLRAdec CA
[ v16 p777 ]
The decision of the Authority follows:
16 FLRA No. 106 INTERNAL REVENUE SERVICE OGDEN SERVICE CENTER, OGDEN, UTAH Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 7-CA-580 DECISION AND ORDER The Chief Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed. Thereafter, the Charging Party and the General Counsel filed exceptions to the Chief Judge's Decision, and supporting briefs, and the Respondent filed cross-exceptions and an opposition to the Charging Party's and General Counsel's exceptions, and a supporting brief. 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 Chief Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Chief Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommended Order. /1/ ORDER IT IS ORDERED that the complaint in Case No. 7-CA-580 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., December 11, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- INTERNAL REVENUE SERVICE OGDEN SERVICE CENTER, UTAH Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 7-CA-580 Nicholas LoBurgio, Esq. For the General Counsel Keith A. Aqui, Esq. For the Respondent Before: JOHN H. FENTON Chief Administrative Law Judge DECISION Statement of the Case This proceeding arises under the Federal Service Labor-Management Relations Statute (5 U.S.C. 7101 et seq.) and the Final Rules and Regulations issued thereunder (5 C.F.R. 2423.14 et seq.) It is based on a complaint issued by the Regional Director of Region VII, Federal Labor Relations Authority, alleging that Respondent violated Section 7116(a)(1) and (5) on April 12, 1980, when it "unilaterally implemented a change in conditions of employment involving a relocation and reorganization affecting tax auditor and revenue agent quality reviewers" at its Ogden, Utah, facility. At issue is the question whether Respondent fully disclosed to the Charging Party the adverse impact upon quality review personnel of a planned nationwide reorganization of its Service Centers, thus foreclosing the opportunity to negotiate such matters before implementation occurred. More specifically, the General Counsel contends that Respondent never definitely informed the Charging Party that such changes would occur, and that, in any event, while it may have allayed the latter's concerns with assurances that there would be no adverse impact, i.e., that neither the duties, grades nor numbers of such employees would be changed, it did not reveal the fact that they would be placed under the supervision (and evaluation) of the very managers whose work product they would review. The predicament of being commissioned to expose errors made which are the responsibility of supervisors who would rate their performance is the change in employment conditions which is central to this controversy. /2/ At issue also is whether the National Treasury Employees Union could designate Chapter 67 as its representative for the negotiations requested by the latter. A formal hearing was held in Washington, D.C. on May 19, 1981. All parties were afforded full opportunity to examine witnesses, introduce evidence and file briefs. Upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law and recommended order: Findings of Fact 1. The National Treasury Employees Union (NTEU) is the exclusive representative of the professional and nonprofessional employees at the Ogden Service Center. Since 1977, it has been the certified representative of all such employees in a nationwide consolidated unit of the twelve such service centers. NTEU Chapter 67 also represents the Ogden employees, there being an understanding that NTEU negotiates contracts and all matters affecting more than one center or facility, and that the relevant Chapter bargains with respect to matters affecting only that particular facility. 2. On January 5, 1979, Michael Dolan, Respondent's Labor Relations Branch Chief, wrote NTEU National President Vincent L. Connery, providing the latter with further information regarding the decision of the IRS Deputy Commissioner to establish a Compliance Division in all Service Centers. In relevant part, Dolan said: You will note that the current Examination Division will become a Branch within the new Compliance Division. Consonant with this realignment, the new Examination Branch will consist of two sections: the Classification Section, formerly the Classification Branch; and the Correspondence Examination and Processing Section, formerly two separate branches. The projected impact of this realignment on bargaining unit employees in the current Examination Division is somewhat diverse. Specifically: 1. The full working level of the Correspondence Examination function will be GS-6. However, any GS-7 incumbents will not be downgraded until such time as the Office of Personnel Management revokes its stay on the downgrading of misclassified position. If it becomes necessary to downgrade incumbents, I will notify you prior to the issuance of any notices of proposed adverse action. 2. Those positions currently assigned to the Technical and Quality Review Staff of the Examination Division will be reassigned to the Quality Review Staff of the new Compliance Division and will continue performing the same functions. However, since the Quality Review Staff will review work of the entire Compliance Division, the number and kind of positions assigned to Examination review work may change. For example, there may not be a need for any GS-512 work on the Quality Review Staff. The National Office Examination Division is currently developing procedures for their quality review program and as soon as they are available, I will forward you a copy. 3. There will be no GS-526 work in the Correspondence and Processing Section. If any Service Center still has encumbered GS-526 positions in the current Correspondence Examination Branch, these positions will be abolished no later than June 30, 1979. 4. Any excess work leader positions which remain encumbered will be abolished no later than June 30, 1979. In all job abolishment actions that this realignment may necessitate, all incumbents who meet the eligibility requirements will be offered the option of pursuing discontinued service retirement prior to my reassignment efforts. Please provide me with any comments or questions you may have before January 23, 1979. 3. On January 25, 1979, National President Connery wrote all Service Center Chapter Presidents, notifying them of Respondent's intention to establish a new Compliance Division in Service Centers and of the fact that NTEU had requested negotiations on the impact and implementation of the change, and requesting their input on the matter. In connection therewith, Connery forwarded the Dolan letter set forth in paragraph 2, above. 4. Between the time of the Dolan letter, and the first and, apparently, only negotiation session concerning the reorganization, on April 18, IRS management decided to place the Quality Review Tax Auditor and Revenue Agent personnel within the Classification Section of the Examination Branch of the Compliance Division. /3/ Thus, these employees would, organizationally, be dropped, from the Division level two tiers down to the Section level. There they would be supervised and evaluated by Section Chiefs, the work of whose subordinates they would review. This decision was not communicated to NTEU prior to the negotiation session. 5. On April 18, Robert Tobias, Executive Vice President and General Counsel of NTEU, met with Bruce Tomaso and a number of other management representatives to discuss the planned reorganization and its impact. Tomaso, using charts, provided an overview of the organizational changes and identified the people (19 Tax Examiners and eight clericals) whose jobs were to be abolished. Tobias asked about the impact on Tax Auditor and Revenue Agent Quality Reviewers and was informed that there would be no adverse impact upon them because they were to be moved to the Classification Section where they would perform the same work at the same grade level. There was only brief mention of this matter, as the overriding concern of the conferees was to identify and work out a method for placing, elsewhere in the system, those employees whose jobs were to be eliminated. The parties entered an Interim Agreement which provided that IRS would furnish NTEU with a "match list" of job alternatives for each such employee, and that it would not commence adverse action proceedings against employees who were not thereby reassigned until after a priority placement program then being developed had been negotiated and was in effect. There was at the meeting no mention of the fact that Quality Reviewers would be supervised and evaluated by the supervisor who was responsible for the work product which they reviewed and, of course, would have occasion to criticize. 6. Almost one year later, on March 14, 1980, officials of the Ogden Service Center informed officials of NTEU Chapter 67 that the Quality Review Staff was to be moved organizationally and physically, and would be under the supervision of the Chief of the Classification Section of the Compliance Division. The Chapter President responded that such changes were negotiable and that negotiations would be requested if management insisted on such changes. Local management said that the subject had been negotiated at the national level. 7. On April 3, 1980, Tobias advised the President of Chapter 67 that the subject matter in dispute had not been negotiated at the national level, suggested that she request local negotiations and stated that he would direct a "check on the matter nation-wide." 8. On April 8, 1980, Chapter 67 wrote the Director of the Ogden Service Center requesting negotiations on the substance, impact and implementation of the change and asking for certain information. 9. On April 21, 1980, the Ogden Service Center implemented the change outlined to the Chapter officials on March 14. No bargaining occurred in Ogden. Discussion and Conclusions General Counsel contends that IRS expressly and knowingly created the false impression, in the Dolan letter, that the Quality Review Staff would be moved laterally from one Division to another, that it never thereafter informed NTEU that the reorganization would involve dropping the Quality Review Staff to the Section level, and that the obligation to provide a reasonable opportunity to bargain about the impact and implementation of the placement of such employees at the Section level was therefore still alive when the implementation occurred in April of 1980. General Counsel further argues that such obligation was owed to Chapter 67 because Executive Vice President Tobias authorized the Chapter President to negotiate over the change and because the Chapter inherently retains the right to negotiate matters of local impact where NTEU was not notified that the change was nationwide. IRS asserts that it did provide NTEU with notice of the contemplated change in the Dolan letter and at the April 18 meeting, that it provided sufficient information to enable NTEU to develop and submit proposals concerning the reorganization, and that it had no obligation to negotiate such an issue, in any event, at the local level. As to its fulfillment of its obligation to the NTEU, it argues that it delineated the nature of the organizational changes which would occur, and that it cannot be held accountable for a failure to divine every potential impact of a proposed change. Rather, it is for the Union to examine the consequences of the planned changes and to formulate appropriate bargaining demands. As to the level of bargaining, IRS asserts that this was a nationwide change, that the parties' agreement to bargain locally only on matters of strictly local impact cannot be repudiated by NTEU at its whim, and that President Connery's letter to Chapter Presidents, seeking their input for negotiations NTEU had requested over the impact and implementation of the establishment of the new Compliance Division, constituted acknowledgement that national negotiations were appropriate for such subject matter. The Dolan letter made clear IRS's intention to reorganize all Service Centers in the same way. It was addressed to the national union and provoked a bargaining request from the national union, consistent with the understanding that such matters are proper subjects for national-level negotiations. While much is made of the tentative nature of the plans outlined in the letter ("may"), that word was expressly linked to the possibility of a change in the number and kind of positions to be assigned to Examination review work, and the example was given that there might be no need for Revenue Agents on the new Quality Review Staff. The letter clearly said that the Quality Review Staff would be transferred from the Examination Division to the planned Compliance Division, and that the Examination Division would become a Branch of the new Division. While I would find it ambiguous with respect to whether the Quality Review Staff would be attached to the new Examination Division, or would be an "autonomous" unit within the Compliance Division, it is clear that IRS intended a lateral transfer and that NTEU so understood the letter. I have found that NTEU was informed at the April 18 discussions, that the personnel at issue would be in the Classification Section of the Examination Branch of the new Division, where they would perform the same work at the same grade level. I find this matter was addressed because the letter left open the question of the placement of the Revenue Agents, indicating there might be no need for them on the Quality Review Staff, and because a program analyst took notes and made a report of that fact. Thus NTEU was assured they would not be "adversely affected," in a context where job abolishment was very much the focus of concern, and in a fleeting way. There is no indication that any of the negotiators gave any thought to the notion that such placement would create the problem later perceived by Chapter 67 officials in Ogden. It was not mentioned, never mind explored. While I agree with IRS that good faith bargaining does not require that it divine all potential impact of a change, but only that it give the Union fair notice of its intentions, the question remains whether NTEU received adequate notice of its decision to place these personnel in the Classification Section. Given the lack of any written notice, the fact that only passing reference was made to such placement in the context of discussions focusing on adversely affected employees (job elimination or downgrading), and the fact that it did not "register" on as astute and intelligent a negotiator as Tobias, I conclude that IRS did not provide NTEU with adequate notice at that time. /4/ There is no evidence that IRS's intended reorganization of all its Centers was not accomplished. We know only that this case is confined to implementation in Ogden, where Chapter 67 made an issue of the matter, that NTEU asserts that it was not made aware of the assignment of the affected personnel to the Section level, and that no bargaining ever took place concerning the impact of such reassignment. IRS's decision to reassign these Quality Review personnel from the Division level to the Section level, where they would review work which was that Section Chief's responsibility, and yet be evaluated for purposes of job retention and promotion by that person, gave rise to a bargaining obligation respecting the impact and implementation of the change. But that obligation, because it rested on a change which affected more than one facility, ran to NTEU rather than any of its Chapters. The bargaining understanding which followed the unit consolidation and certification of NTEU, restricted the role of the Chapters to matters of purely local concern. As IRS never adequately disclosed to NTEU its intention to drop these personnel through several organizational levels, it would follow that, in making such changes, it did not fulfill its obligation to first afford NTEU a reasonable opportunity to bargain about the procedures to be observed in taking such action and appropriate arrangements for employees adversely affected. However, if NTEU can be charged with actual knowledge in advance (through Chapter 67) the appropriate response was to demand bargaining at the national level, rather than to attempt to commission Local 67 to enter local negotiations over a nationwide change. If it can be viewed as learning of a fait accompli, its recourse was to file a timely charge directed at the deprivation of its right to reasonable notice and an opportunity to negotiate. It did neither. Rather it alleged, as does the General Counsel's Complaint, that IRS flouted its bargaining obligation to NTEU when it refused to negotiate with its representatives, the officials of Chapter 67. While NTEU is free to designate whomever it desires as its representative in bargaining, including any officer of Chapter 67, it cannot thereby create an obligation that IRS bargain about local matters with it (albeit through local union officials). Nor can it create an obligation that IRS bargain about the local impact of a national change only with that particular Chapter which chooses to make an issue of the matter. To hold otherwise would, as Respondent contends, license it to alter bargaining arrangements as its whim, and render meaningless the agreement of the agency and the certified exclusive representative of all employees in this unit that matters affecting more than one facility would be subject to negotiations at the national level, whereas matters affecting only a single facility would be subject to negotiations with that Chapter. General Counsel relies on SSA, Northeastern Program Service Center, 8 A/SLMR 893 in asserting that NTEU can have it both ways where the national union authorizes the local union to negotiate over the change. There, as here, the Agency had a number of service centers, and the national union was the recognized exclusive representative of the employees at such centers. Unlike here, a change limited to one center was made, and the agency defended its refusal to bargain with local union officials on the ground that such duty was owed exclusively to the national representative. The Assistant Secretary held, on the basis of the evidence, that the national union had designated the local to act in its behalf as to matters affecting the local installation and that the agency had accepted this arrangement by instructing center managers to negotiate with the locals on local matters. This is a far cry from recognizing, as sufficient to alter an established bargaining pattern, a national union's suggestion that a local official "request local negotiations," followed by a request focusing on changes at that particular Center. General Counsel supplements this argument with the contention that NTEU could designate the local as its bargaining agent on issues first presented at the local level and as to which it had never been informed that a national change was underway, and, in any event, that a local has the inherent right to compel bargaining as to local impact in such circumstances. As noted earlier, the obligation to deal with the national union would survive in such circumstances until extinguished by the failure to file a timely unfair labor practice charge, but the failure to recognize the national for such purposes does not give rise to an obligation to the local. Default at one level does not create new rights at another level. In sum, Chapter 67 could represent NTEU in negotiations concerning the impact and implementation of the change at all Centers, and it could, in its own behalf, address any peculiarly local problems. It could not, on behalf of NTEU, effectively request bargaining concerning the impact of a nationwide change at Ogden only. Accordingly, I recommend that the Complaint be dismissed. JOHN H. FENTON Chief Administrative Law Judge Dated: September 3, 1982 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ See Department of Health and Human Services, Social Security Administration, 10 FLRA 77 (1982) and Department of Health and Human Services, Social Security Administration, 6 FLRA 202 (1981). /2/ While the Complaint can be read as putting into issue the physical relocation as well as the organizational redeployment of such employees, the matter was not explicitly addressed in the bargaining request, the unfair labor practice charge, or at the hearing. I conclude it is not an issue in the case. /3/ It is to be noted that the Revenue Agents occupy the GS-512 series which the Dolan had indicated "may" not be needed on the Quality Review Staff. Thus, so far as the Union knew when the April 18 negotiations commenced, there was every indication that the transfer of Quality Review Personnel would be lateral, but there was no assurance that the number and kind of positions would not change. It has been specifically forewarned that Revenue Agents might not remain on such staff at all. /4/ See Department of the Army, Harry Diamond Laboratories, Adelphi, Maryland, 9 FLRA No. 66.