[ v19 p353 ]
19:0353(48)CA
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.