[ v19 p353 ]
The decision of the Authority follows:
19 FLRA No. 48 INTERNAL REVENUE SERVICE (DISTRICT, REGION, NATIONAL OFFICE UNITS) Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 3-CA-1889 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had engaged in certain unfair labor practices alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Judge further recommended that other allegations of the complaint be dismissed as untimely. Thereafter, the Respondent filed exceptions to the Judge's Decision and the Charging Party filed an opposition to the exceptions. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommended Order only to the extent consistent herewith. The complaint alleges, and the Judge found, that the Respondent, Internal Revenue Service, bypassed the National Treasury Employees Union (NTEU), its employees' exclusive representative, in violation of section 7116(a)(1) and (5) of the Statute, /1A/ by distributing questionnaires to unit employees regarding their conditions of employment. The Respondent excepts to the Judge's conclusion that the distribution of the questionnaires violated the Statute, contending that the use of such questionnaires was a proper information gathering mechanism being utilized as part of a comprehensive study of its Appeals Organization. The Authority agrees. As the Authority has previously found, the prohibition on management's negotiating or dealing directly with unit employees in derogation of its duty to bargain with an exclusive representative does not in every case prevent an agency from seeking information or opinions directly from its employees. See Department of Health and Human Services, Social Security Administration, Bureau of Field Operations, San Francisco, California, 10 FLRA 115 (1982); and Internal Revenue Service (District, Region, National Office Unit), 11 FLRA 69 (1983), enf'd sub nom. National Treasury Employees Union v. FLRA, 725 F.2d 126 (D.C. Cir. 1984). See also, Kaiserslautern American High School, Department of Defense Dependents Schools, Germany North Region, 9 FLRA 184 (1982). Thus, as part of its overall management responsibility to conduct operations in an effective and efficient manner, an agency may question employees directly provided that it does not do so in a way which amounts to attempting to negotiate directly with its employees concerning matters which are properly bargainable with its employees' exclusive representative. In this regard, as the Authority has previously noted, management must have the latitude to gather information, including opinions, from unit employees to ensure the efficiency and effectiveness of its operations. See, e.g., Department of Health and Human Services, Social Security Administration, Bureau of Field Operations, San Francisco, California, supra. In the circumstances of this case, the Authority finds that the Respondent did not bypass the employees' exclusive representative, NTEU, in violation of section 7116(a)(1) and (5) of the Statute. Thus, the Respondent notified NTEU that it was going to conduct a study of its Appeals Organization, and gave NTEU copies of the subject questionnaires before distributing them to unit employees. Moreover, the Respondent told NTEU that "(s)hould the Appeals Division determine that changes are necessary as a result of this study and such changes affect bargaining unit employees, you will be properly notified." In a written response to NTEU's concern regarding certain questions included on the questionnaires, the Respondent further stated, "(S)hould the (study) team make any recommendations which management accepts that affects bargaining unit employees, you will be properly notified. Subsequent to such notification, you will be provided, if requested, with any information from the study (including responses to this question) which is necessary for negotiation." Thus, rather than bypassing the exclusive representative, the Respondent recognized its obligation to bargain with NTEU over any future changes affecting unit employees' conditions of employment which might result from the study, and, in the same correspondence, stated that "(a)t this point in time we have no other intentions for this information other than compiling it for review by the study team." Therefore, the Authority concludes that the Respondent's distribution of the questionnaires was not an improper direct communication with its employees in derogation of its duty to bargain with the exclusive representative. Rather, the questionnaires were an information gathering mechanism, in connection with the management function of studying its operations. Further, there is no indication that through the questionnaires the Respondent attempted to deal or negotiate directly with unit employees concerning their conditions of employment or in any manner created the appearance of doing so. Accordingly, the Authority concludes that the complaint herein must be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 3-CA-1889 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., July 26, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 3-CA-1889 Michael Sussman, Esq. For the Respondent Joanne Ochsman For the Charging Party Susan Shinkman, Esq. For the General Counsel, FLRA Before: SAMUEL A. CHAITOVITZ Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq., 92 Stat. 1191 (hereinafter referred to as the Statute) and the Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5 C.F.R.Chapter XIV, 2410 et seq. A charge was filed on January 19, 1981, by the National Treasury Employees Union (hereinafter called the Union and/or NTEU) against Internal Revenue Service (District Region, National Office Units) (hereinafter called Respondent and/or IRS). NTEU filed an amended charge on March 25, 1981, and a second amended charge on May 22, 1981. Pursuant to the above described charge and amended charges the General Counsel of the FLRA, by the Director of Region 3, issued a Complaint and Notice of Hearing on June 10, 1981, alleging that IRS violated Sections 7116(a)(5) and (1) of the Statute by issuing questionnaires to employees, thereby bypassing NTEU, the collective bargaining representative of those employees. IRS filed an Answer denying that it had violated the Statute. A hearing in this matter was conducted before the undersigned in Washington, D.C. The General Counsel of the FLRA, IRS and NTEU were represented and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence and to argue orally. Post hearing briefs were filed and have been fully considered. Based upon the entire record in this matter, my observation of the witnesses and their demeanor, and from my evaluation of the evidence, I make the following: Findings of Fact At all times material herein NTEU has been the exclusive collective bargaining representative for a nationwide unit of IRS employees, including employees in IRS' Appeals Organization. At all times material, Frank Ferris, NTEU Director of Negotiations, acted as chief spokesman for the Union. By letter dated May 15, 1980, IRS notified NTEU that IRS was about to conduct a survey of its Appeals Organization, and further that IRS would utilize, among other procedures, interviews and questionnaires to accomplish its survey. By letter dated May 23, 1980, IRS forwarded to NTEU copies of questionnaires which were to be distributed to Senior Auditors and Appeals Auditors. One questionnaire asks, among other questions, for the employees' "general reaction" to the possible use of programmable calculators, micro computers, NCR Terminals, etc. and for an estimate of the amount of training that would be required in order to utilize the equipment. The questionnaire also asks the employee to "indicate any career ladder opportunities in which you are interested." Another attached questionnaire asks the Appeals Auditors to indicate how significant certain listed skills, knowledge and abilities are to the successful performance of the job. There were a number of questions inquiring as to the Auditors' judgments as to the value of certain past experience (e.g. prior IRS experience) in performing their job as well as how important for success were training courses. On May 28, 1980, Ferris sent a letter to IRS Labor Relations Officer Michael P. Dolan in which, among other items, Ferris asked for a copy of all data produced by the study of the Appeals Organization. In addition Ferris stated: "Furthermore, I want to remind you that we believe you must limit your choice of employees for desk audit to those chosen by NTEU. Consequently, please contact the local NTEU president in each office who will give you a list of people we will make available for interviews. Naturally, since the desk audits will also be formal meetings, we expect that local union representatives will be invited to attend." Dolan responded to Ferris by letter dated June 12, 1980, in which he stated: "While I intend to address this issue by separate letter I will at this time confirm Sue's discussions with you to the extent that we disagree with your position that you are entitled to sit in on interviews. Furthermore, we do not intend to provide you with the data collected until such time as management decides to make some changes. At that time you will be notified and provided with all necessary and relevant information." "Our position on this matter is the same as I discussed regarding the Examination Managers Survey." In a letter dated June 16, IRS advised NTEU, with respect to a similar case, that NTEU could not play any part in the interviews of employees since such interviews would be "simply an information gathering mechanism." On October 6, 1980, IRS forwarded to NTEU copies of questionnaires which were to be distributed to other employees in the Appeals Organization, specifically Appeals Officers, Appeals Clerks/Appeals Aids and Record Clerks. The questionnaire directed to the Appeals Officer asked, among other questions: "1. Are you satisfied with the training provided for Aids? Yes . . . No . . . "2. If the answer to #1 above is "No", what additional training would you recommend? "3. Are you satisfied with the assignment of the Aids in your office (pool concept, 1 Aid to 2/3 Appeals Officers, etc.?) Yes . . . No . . . "4. If the answer to #3 above is "No", what changes would you recommend?" . . . . "11. Do you have any suggestions that you believe would improve the efficiency of clerical operations? "Do you have suggestions for improvement of your job as an Appeals Clerk or as an Appeals Aid? Yes . . . No . . . "If "Yes", please explain:" Further, with respect to the questionnaires directed to Records Clerks and Appeals Clerk/Appeals Aid, the employees were asked if their training had been adequate and if they had any suggestions for improving their jobs. NTEU sent a letter to IRS on October 20, 1980 in which Ferris stated: ". . . I urge you not to implement it because of the improper nature of several questions. Those questions which seek the opinion of unit employees about working conditions or changes therein they would like to see are violations of our rights under 5 U.S.C. 7100 et seq. "In addition, I invoke our right to negotiate over any negotiable issues. Please prepare a briefing after which I will forward proposals." By letter dated November 26, 1980, IRS responded to NTEU's October 20 letter. IRS rejected NTEU's request that the questionnaires not be distributed and that the Union be consulted because "this is simply an information gathering mechanism." Commencing in September or October 1980, the questionnaires which were sent to NTEU on October 6, 1980, were distributed nation wide to Appeals Officers, Appeals Clerks/Appeals Aids and Record Clerks in the IRS' districts. IRS distributed these questionnaires to the bargaining unit employees without negotiating with NTEU. Other Incidents NTEU President Vincent L. Connery was advised by IRS by letter dated November 6, 1978, /1/ of studies to be conducted in various district offices. The attached questionnaires inquired into the employees' opinions as to training. NTEU President Vincent L. Connery was advised by IRS by letter dated December 20, 1979, concerning questionnaires to be distributed to procurement officers, soliciting the opinions of the officers concerning their training. There was a dispute between IRS and NTEU as to whether or which procurement officers were in the collective bargaining unit. The Union did not ask IRS not to distribute the questionnaires or to discuss them. By letter dated September 2, 1980, IRS advised Connery of questionnaires to be distributed to Revenue Officers. The questionnaire inquired into the educational background of the Revenue Officer and which prior work experiences should be considered beneficial to the performance of the job. NTEU did not request IRS not to distribute these questionnaires nor did NTEU request to bargain about these questionnaires. By letters dated November 21, 1980, March 5, 1981, June 1, 1981, and June 2, 1981, IRS advised NTEU of questionnaires IRS intended to distribute to employees and NTEU did not request IRS not to distribute any of these questionnaires, nor did NTEU request to bargain about the questionnaires. On September 11, 1980, NTEU filed an unfair labor practice charge in Case No. 3-CA-1458 and on February 6, 1981, NTEU filed an unfair labor practice charge in Case No. 3-CA-1964. Both cases involved the Union's objection to IRS conducting studies which involve interviewing unit employees without permitting the Union to be present. Discussion and Conclusions In Department of Health, Education and Welfare, Social Security Administration, Bureau of Retirement and Survivors Insurance, Northwestern Program Center, 1 FLRA 507 (1979), (hereinafter called the HEW Case) the FLRA affirmed the Administrative Law Judge who found that the distribution of a questionnaire directly to employees by the agency, without the consent of the union, constituted a violation of Sections 19(a)(1) and (6) of Executive Order 11491. /2/ The Administrative Law Judge, as affirmed by the Authority, analyzed the collective bargaining relationship among the union, agency and employees. He found that the soliciting of opinions of employees, by the agency, concerning collective bargaining matters, breached the obligation that the agency owed to the union, the only formal representative who speaks for all unit employees. It is fundamental that only the collective bargaining representative of the unit may speak and represent employees in the collective bargaining unit concerning conditions of employment. In the collective bargaining process this is one of the union's most fundamental and basic rights and duties. When an agency attempts to communicate with employees and to solicit the opinions of those employees concerning terms of employment, without the permission of the union, the agency is attempting to bypass the collective bargaining representative and is attacking and undermining the very basis of the collective bargaining status of the union. cf. HEW Case, supra. /3/ Accordingly, such conduct on the part of an agency is in violation of its most basic collective bargaining obligations as set forth in the Statute and thus would violate Sections 7116(a)(5) and (1) of the Statute. In this regard it must be noted that the questionnaires in the subject case dealt with matters which were terms and conditions of employment and were the subject of bargaining. /4/ Further, certain of the questions were substantially analogous to the questions raised in the HEW Case, supra. In that case it was held that such matters had to be raised only with the collective bargaining representative. IRS' contention that the use of the questionnaire is "an information gathering mechanism" and, therefore, is somehow privileged, is rejected. This argument completely ignores NTEU's status as the sole representative who can speak for the employees concerning terms and conditions of employment. Similarly the perception expressed by IRS that bypassing is a violation only of Section 7116(a)(1) of the Statute is based on a complete misconception of IRS' obligation to bargain only with NTEU. Thus, IRS cannot solicit employee opinions concerning matters that are subject to bargaining, and to do so violates the IRS' obligation to bargain with NTEU. IRS contends that the charges filed in the subject case were not timely filed within the requirements set forth in Section 7118(a)(4) of the Statute, which provides that " . . . no complaint shall be issued based on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority." The original charge in the subject case was filed on January 19, 1981. /5/ IRS contends that the alleged unfair labor practice really occurred on May 15, 1980, when IRS advised NTEU that it intended to conduct the study of Appeals Organization and on May 23, 1980, when the first set of questionnaires were sent to NTEU. NTEU was on notice by May 23, 1980, concerning the study of the Appeals Organization and of the questionnaires to be sent to certain employees. Pursuant to the terms of Sections 7118(a)(4) of the Statute any unfair labor practice charge raising these questionnaires would have to have been filed within six months of May 23, 1980, or at least within six months of a refusal by IRS of a timely request by NTEU that the questionnaires not be sent. Accordingly, since no timely charge was filed with respect to the May 23, 1980 questionnaires, it is concluded that the complaint in the subject case, insofar as it refers to the May 23, 1980 questionnaires should be dismissed as untimely. However, IRS' contention that the May 23 and October 6, 1980 questionnaires are so similar that the charge, insofar as it refers to the October 6 questionnaire, must also be dismissed because of untimeliness is rejected. The October 6 questionnaires are separate and distinct from the May 23 questionnaires and were being directed to different employees, although both groups of employees were part of the study of the Appeals Organization. It would be unreasonable to require that NTEU object to the October 6 questionnaires before it was advised what specific questions would be asked. It is possible, and indeed it might have been hoped, that these October 6 questionnaires would have been legal. Thus, the fact that NTEU failed to file a timely charge with respect to the May 23 questionnaires, does not mean that it could not file a timely charge with respect to the October 6, 1980 questionnaire. It is concluded that the charge is timely with respect to the October 6, 1980 questionnaires. IRS contends that, by allowing the May 23 questionnaires to be utilized, NTEU waived its right to negotiate with respect to the October 6, 1980 questionnaires. Further, IRS seems to urge that because of the use of questionnaires in the past there is no change in conditions of employment. Again, both of these arguments are based on a misunderstanding of the underlying collective bargaining relationship and the obligations that flow from this relationship. The right of NTEU to bargain and represent the employees in the unit and to be their sole spokesman is basic and fundamental to the very nature of collective bargaining. It is NTEU that determines, after notice, if it wishes to permit IRS to bargain directly with the employees. With respect to the May 23 questionnaires NTEU, after notice, did not refuse to permit IRS to bypass the Union. NTEU, in effect, chose to permit the employees to voice their opinions directly to IRS. However, NTEU at no time indicated it was waiving its basic right to be the sole collective bargaining spokesman with respect to other situations and questionnaires. Any waiver of a statutory right, especially with respect to one that goes to the heart of the union status as collective bargaining representative, must be clear and unequivocal. Department of the Air Force, Scott Air Force Base, 5 FLRA No. 2 (1981) and Department of the Navy, Portsmouth Naval Shipyard, 4 FLRA No. 82 (1980). No such waiver is present in the subject case. Similarly, no clear practice existed so as to make such bypassing an existing working condition. In so concluding, it must be noted that many of the questionnaires relied upon by IRS to establish such an existing practice were issued after the subject situation arose; another arose before the NTEU was recognized for a nation wide unit; and another involved a disputed unit. These uses of questionnaires, therefore, are not considered as very persuasive in determining whether there was any established working condition involving bypassing the Union by using questionnaires. The remaining use of questionnaires relied upon by IRS was too limited to establish a working condition. This is particularly the case where NTEU had repeatedly objected and filed unfair labor practice charges with respect to the IRS practice of trying to solicit information directly from employees by interview. In light of all of the foregoing, therefore, the IRS contentions that the use of questionnaires to bypass NTEU was an existing working condition or that NTEU had waived its right not to be so bypassed are rejected. Accordingly it is concluded that by issuing the questionnaires in September/October 1980, IRS bypassed the Union and thus violated Sections 7116(a)(5) and (1) of the Statute. NTEU urges that a status quo ante remedy is appropriate. Any change in working conditions resulting from the use of the questionnaires would have required notice to NTEU and an opportunity to bargain. If such notice and opportunity to bargain had not been given, the status quo ante remedy would be appropriate in that case. However, in the subject case, involving only bypassing without any allegation of unilateral change, it is deemed that the status quo ante remedy is not appropriate. cf. HEW Case, supra. Having found and concluded that IRS violated Sections 7116(a)(5) and (1) of the Statute, I recommend that the Authority issue the following: ORDER Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Statute, the Authority hereby Orders that Internal Revenue Service (District, Region, National Office Units) shall: 1. Cease and desist from: (a) Soliciting from employees represented by National Treasury Employees Union, by means of questionnaires, opinions and sentiments involving personnel policies and practices and matters affecting working conditions without first obtaining consent of National Treasury Employees Union. (b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute. (a) Post at its facilities wherever unit employees are located copies of the attached notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by a responsible official and shall be posted by him for 60 consecutive days in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The official shall take reasonable steps to insure that such notices are not altered, defaced or covered by any other material. (b) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of Region III, 1111-18th Street, N.W., Suite 700, Washington, D.C., in writing within 30 days from the date of this Order as to what steps have been taken to comply herewith. SAMUEL A. CHAITOVITZ Administrative Law Judge Dated: June 8, 1982 Washington, D.C. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT solicit from employees represented by National Treasury Employees Union, by means of questionnaires, opinions and sentiments involving personnel policies and practices and matters affecting working conditions without first obtaining consent of National Treasury Employees Union. WE WILL NOT in any like or related manner, interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. (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 III, whose address is: 1111 18th Street, N.W., Washington, D.C., 20036, and whose telephone number is: (202) 653-8452. --------------- FOOTNOTES$ --------------- /1A/ Section 7116(a)(1) and (5) provides: Sec. 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; . . . . (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.) /1/ At this time NTEU was not recognized as the collective bargaining representative for the nation wide unit. /2/ Executive Order 11491 will be hereinafter referred to as the Order. /3/ There is nothing in the Legislative History of the Statute to indicate that Congress intended to change or alter these fundamental collective bargaining obligations and relationships that had been recognized and established in the Order. /4/ E.g. Employee opinions on adequacy of training, etc. /5/ The six month period would cover any matter that occurred, on or after July 19, 1980.