[ v02 p587 ]
02:0587(76)CA
The decision of the Authority follows:
2 FLRA No. 76
INTERNAL REVENUE SERVICE (IRS)
AND BROOKLYN DISTRICT OFFICE, IRS
Respondents
and
NATIONAL TREASURY EMPLOYEES UNION (NTEU)
AND NTEU, CHAPTER 53
Complainants
Assistant Secretary
Case No. 30-08634(CA)
DECISION AND ORDER
ON MAY 10, 1979, ADMINISTRATIVE LAW JUDGE GARVIN LEE OLIVER ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING
FINDING THAT THE RESPONDENT, BROOKLYN DISTRICT OFFICE, IRS, HAD ENGAGED
IN CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT CEASE AND
DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE
ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER. /1/
THEREAFTER, THE RESPONDENTS FILED EXCEPTIONS AND A SUPPORTING BRIEF TO
THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER AND THE
COMPLAINANTS (UNION) FILED A RESPONSE THERETO.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(44 F.R. 44741,JULY 30, 1979). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, INCLUDING THE RESPONDENTS' EXCEPTIONS AND SUPPORTING BRIEF AND THE
UNION'S RESPONSE THERETO, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE
LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, EXCEPT AS
MODIFIED HEREIN.
THE COMPLAINT HEREIN ALLEGED, IN ESSENCE, THAT THE RESPONDENTS
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY TRANSFERRING THE
MAINTENANCE OF MANUAL PART PAYMENT JOB FUNCTION AND THE ROUTINE
MICROFILM SEARCHES JOB FUNCTION FROM THE BROOKLYN DISTRICT OFFICE TO THE
BROOKHAVEN SERVICE CENTER, WITHOUT PRIOR NOTIFICATION TO THE UNION AND
AFFORDING IT AN OPPORTUNITY TO REQUEST NEGOTIATION OVER THE IMPACT AND
IMPLEMENTATION OF THOSE MANAGEMENT DECISIONS. /2/
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT DID IN FACT
TRANSFER THE JOB FUNCTIONS IN ISSUE, AND THAT THE TRANSFERS DID EFFECT A
CHANGE IN WORKING CONDITIONS OF UNIT EMPLOYEES AND THUS HAD AN IMPACT ON
THEIR TERMS AND CONDITIONS OF EMPLOYMENT. HE FURTHER FOUND THAT THE
UNION WAS FIRST NOTIFIED OF THE JOB FUNCTION TRANSFERS AFTER THE
MICROFILM SEARCHES FUNCTION HAD IN FACT BEEN TRANSFERRED, AND, WITH
RESPECT TO THE MAINTENANCE OF MANUAL PART PAYMENT FUNCTION, THAT THE
MANNER OF NOTICE GIVEN TO THE UNION DID NOT CONSTITUTE THE TYPE OF
PRECISE NOTIFICATION ENVISAGED BY THE ORDER. THE ADMINISTRATIVE LAW
JUDGE FOUND THAT SUCH NOTIFICATION WAS INSUFFICIENT TO ENABLE THE UNION
TO NEGOTIATE IN A MEANINGFUL MANNER, PRIOR TO THE CHANGES, CONCERNING
THE IMPACT AND IMPLEMENTATION OF MANAGEMENT'S DECISIONS. FINALLY, HE
CONCLUDED THAT WHERE IT HAD NOT BEEN AFFORDED REASONABLE NOTICE, THE
UNION DID NOT HAVE TO REQUEST BARGAINING IN ORDER TO ESTABLISH A
VIOLATION OF THE ORDER BY THE RESPONDENT. ACCORDINGLY THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT BY UNILATERALLY
IMPLEMENTING THE TRANSFER OF THE MICROFILM SEARCHES FUNCTION AND THE
MAINTENANCE OF MANUAL PART FUNCTION FROM THE BROOKLYN DISTRICT OFFICE TO
THE BROOKHAVEN SERVICE CENTER VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER.
WITH RESPECT TO NOTIFICATION TO THE UNION OF THE JOB FUNCTION
TRANSFERS, THE FACTS, AS FOUND BY THE ADMINISTRATIVE LAW JUDGE, ARE
CLEAR. HAVING MADE ITS DECISION TO TRANSFER A NUMBER OF JOB FUNCTIONS
FROM THE BROOKLYN DISTRICT OFFICE TO THE BROOKHAVEN SERVICE CENTER, THE
RESPONDENT TRANSFERRED THE MICROFILM SEARCHES FUNCTION DURING THE FIRST
WEEK IN JANUARY 1978, AND THE MAINTENANCE OF MANUAL PART PAYMENT
FUNCTION ON EITHER FEBRUARY 12 OR 13, 1978. BETWEEN THOSE DATES, ON
JANUARY 17, 1978, GARGANO, ONE OF RESPONDENT'S BRANCH CHIEFS, TOLD UNION
VICE-PRESIDENT MODIN OF RESPONDENT'S PLANS INVOLVING THE TWO TRANSFERS
IN ISSUE, ALTHOUGH HE DID NOT KNOW AT THAT TIME WHETHER THE TRANSFERS
HAD TAKEN PLACE. AS CREDITED BY THE ADMINISTRATIVE LAW JUDGE SHORTLY
THEREAFTER, MODIN RELAYED THAT INFORMATION TO UNION PRESIDENT BRAVERMAN.
THE RECORD REVEALS NO EARLIER NOTIFICATION TO THE UNION. THUS, THE
UNION HAD NO KNOWLEDGE OF THE RESPONDENT'S PLAN TO TRANSFER THE
MICROFILM SEARCHES FUNCTION UNTIL AFTER THAT TRANSFER WAS A FAIT
ACCOMPLI. IN THESE CIRCUMSTANCES, IN AGREEMENT WITH THE FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE, THE
AUTHORITY FINDS THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF
THE ORDER BY TRANSFERRING THE MICROFILM SEARCHES FUNCTION WITHOUT
NOTIFYING THE UNION AND AFFORDING IT THE OPPORTUNITY TO MEET AND CONFER
ON THE PROCEDURES WHICH MANAGEMENT WOULD OBSERVE IN IMPLEMENTING SUCH
TRANSFER AND ON THE IMPACT OF SUCH TRANSFER ON ADVERSELY AFFECTED UNIT
EMPLOYEES.
HOWEVER, WITH RESPECT TO THE MAINTENANCE OF MANUAL PART PAYMENT
FUNCTION, THE AUTHORITY FINDS THAT THE UNION HAD ADEQUATE KNOWLEDGE OF
THE RESPONDENT'S DECISION ALMOST A MONTH PRIOR TO THE ACTION TAKEN.
THUS, AS NOTED ABOVE, BOTH THE UNION PRESIDENT AND VICE-PRESIDENT WERE
MADE AWARE OF RESPONDENT'S PLANS IN MID-JANUARY, PRIOR TO THE ACTUAL
TRANSFER WHICH TOOK PLACE ON FEBRUARY 12 OR 13. CONTRARY TO
COMPLAINANT'S ARGUMENTS, IN THE AUTHORITY'S VIEW IT IS NOT SIGNIFICANT,
IN THE CIRCUMSTANCES OF THIS CASE, THAT THE USUAL MANAGEMENT OFFICIALS
DID NOT EFFECTUATE THE NOTIFICATION AND THAT GARGANO DID NOT KNOW THE
STATUS OF THE IMPENDING TRANSFERS WHEN HE INFORMED MODIN OF THEIR
EXISTENCE. WHAT IS SIGNIFICANT, IN THE VIEW OF THE AUTHORITY, IS THAT
RESPONSIBLE UNION OFFICIALS HAD ACTUAL KNOWLEDGE OF THE IMPENDING
TRANSFER IN SUFFICIENT TIME TO DEMAND BARGAINING CONCERNING ITS IMPACT
AND IMPLEMENTATION. IN SUCH CIRCUMSTANCES, THE UNION WAS OBLIGED TO
REQUEST NEGOTIATIONS IN ORDER TO GIVE RISE TO THE RESPONDENT'S
OBLIGATION TO BARGAIN. /3/ THE RECORD SHOWS NO SUCH REQUEST OR DEMAND
BY THE UNION PRIOR TO THE FILING OF ITS CHARGE IN THE INSTANT CASE.
ACCORDINGLY, THE AUTHORITY WILL ORDER THAT THIS ALLEGATION OF THE
COMPLAINT BE DISMISSED. /4/
ORDER
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT BROOKLYN DISTRICT OFFICE, IRS, BROOKLYN, NEW YORK, SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING A TRANSFER OF THE MICROFILM SEARCHES FUNCTION FROM
THE BROOKLYN DISTRICT
OFFICE, IRS, TO THE BROOKHAVEN SERVICE CENTER, IRS, INVOLVING
EMPLOYEES REPRESENTED
EXCLUSIVELY BY THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU,
CHAPTER 53, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, WITHOUT FIRST NOTIFYING
THE EXCLUSIVE
REPRESENTATIVE AND AFFORDING IT THE OPPORTUNITY TO MEET AND CONFER,
TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS, ON THE PROCEDURES WHICH MANAGEMENT WILL
OBSERVE IN IMPLEMENTING SUCH
A TRANSFER AND ON THE IMPACT SUCH TRANSFER WILL HAVE ON ADVERSELY
AFFECTED UNIT EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST, MEET AND CONFER WITH THE NATIONAL TREASURY
EMPLOYEES UNION AND NTEU
CHAPTER 53, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS,
CONCERNING THE PROCEDURES WHICH
MANAGEMENT OBSERVED IN TRANSFERRING THE MICROFILM SEARCHES FUNCTION
AND THE IMPACT SUCH
TRANSFER HAD ON ADVERSELY AFFECTED EMPLOYEES IN THE EXCLUSIVELY
RECOGNIZED UNIT.
(B) POST AT ALL INTERNAL REVENUE SERVICE, BROOKLYN DISTRICT OFFICE
FACILITIES AND
INSTALLATIONS COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
FORMS TO BE FURNISHED BY THE
AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
DIRECTOR OF THE BROOKLYN
DISTRICT OFFICE AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER,
IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE DISTRICT DIRECTOR SHALL TAKE
REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(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.
IT IS FURTHER ORDERED THAT THE PORTION OF THE COMPLAINT FOUND NOT TO
BE VIOLATIVE OF THE EXECUTIVE ORDER IN ASSISTANT SECRETARY CASE NO.
30-08634(CA) BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JANUARY 25, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INSTITUTE A TRANSFER OF THE MICROFILM SEARCHES FUNCTION
FROM THE BROOKLYN DISTRICT OFFICE, IRS, TO THE BROOKHAVEN SERVICE
CENTER, IRS, INVOLVING EMPLOYEES REPRESENTED EXCLUSIVELY BY THE NATIONAL
TREASURY EMPLOYEES UNION AND NTEU, CHAPTER 53, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE OF OUR EMPLOYEES, WITHOUT FIRST NOTIFYING THE EXCLUSIVE
REPRESENTATIVE AND AFFORDING IT THE OPPORTUNITY TO MEET AND CONFER, TO
THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES WHICH
MANAGEMENT WILL OBSERVE IN IMPLEMENTING SUCH A TRANSFER AND ON THE
IMPACT SUCH TRANSFER WILL HAVE ON ADVERSELY AFFECTED UNIT EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL UPON REQUEST, MEET AND CONFER WITH THE NATIONAL TREASURY
EMPLOYEES UNION AND NTEU CHAPTER 53, TO THE EXTENT CONSONANT WITH LAW
AND REGULATIONS, CONCERNING THE PROCEDURES WHICH MANAGEMENT OBSERVED IN
TRANSFERRING THE MICROFILM SEARCHES FUNCTION FROM THE BROOKLYN DISTRICT
OFFICE, IRS, TO THE BROOKHAVEN SERVICE CENTER, IRS, AND THE IMPACT SUCH
TRANSFER HAD ON ADVERSELY AFFECTED EMPLOYEES IN THE EXCLUSIVELY
RECOGNIZED UNIT.
(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, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
ROOM 241, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10007, AND WHOSE
TELEPHONE NUMBER IS: (212) 264-4934.
ALLAN B. HORN, ESQUIRE
ROBERT F. HERMANN, ASSISTANT
REGIONAL COUNSEL
OFFICE OF THE REGIONAL COUNSEL
INTERNAL REVENUE SERVICE
NORTH-ATLANTIC REGION
26 FEDERAL PLAZA, 12TH FLOOR
NEW YORK, NEW YORK 10007
FOR THE RESPONDENTS
MR. FRANK D. FERRIS
DIRECTOR OF TRAINING
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W., SUITE 1101
WASHINGTON, D.C. 20006
FOR THE COMPLAINANT
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THIS CASE AROSE PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED, AS A
RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON AUGUST 17, 1978
AND AN AMENDED COMPLAINT FILED ON SEPTEMBER 11, 1978 BY THE NATIONAL
TREASURY EMPLOYEES UNION (NTEU), CHAPTER 53 (HEREINAFTER CALLED THE
COMPLAINANT OR UNION), AGAINST THE INTERNAL REVENUE SERVICE (IRS) AND
BROOKLYN DISTRICT OFFICE, IRS (HEREINAFTER CALLED THE RESPONDENTS OR
ACTIVITY).
THE AMENDED COMPLAINT ALLEGED THAT THE RESPONDENTS VIOLATED SECTIONS
19(A)(1) AND (6) OF THE EXECUTIVE ORDER BY THE TRANSFER OF FUNCTIONS,
SPECIFICALLY, MAINTENANCE OF MANUAL PART PAYMENT AND ROUTINE MICROFILM
SEARCHES FROM THE BROOKLYN DISTRICT TO THE BROOKHAVEN SERVICE CENTER,
SOMETIME AFTER FEBRUARY 15, 1978, WITHOUT PRIOR NEGOTIATION OVER IMPACT
AND IMPLEMENTATION WITH THE UNION.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED IN NEW YORK,
NEW YORK. BOTH PARTIES WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY
TO BE HEARD, TO ADDUCE RELEVANT EVIDENCE, AND TO EXAMINE AND
CROSS-EXAMINE WITNESSES. POST-HEARING BRIEFS HAVE BEEN RECEIVED FROM
BOTH PARTIES AND DULY CONSIDERED.
BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
FINDINGS OF FACT
COMPLAINANT IS THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR A UNIT
COMPRISED OF FEDERAL EMPLOYEES OF THE BROOKLYN DISTRICT, IRS.
ON DECEMBER 5, 1977, A MEETING ATTENDED BY ALL INTERNAL REVENUE
SERVICE, NORTH-ATLANTIC REGIONAL DISTRICT DIRECTORS AND
COLLECTION/COLLECTION AND TAXPAYER SERVICE (CATS) DIVISION CHIEFS WAS
CONDUCTED BY THE OFFICE OF THE REGIONAL COMMISSIONER, INTERNAL REVENUE
SERVICE, NORTH-ATLANTIC REGION TO DISCUSS COLLECTION RESOURCES. AMONG
THE TOPICS DISCUSSED WAS THE FEASIBILITY OF CENTRALIZATION OF VARIOUS
DISTRICT FUNCTIONS IN THE BROOKHAVEN AND ANDOVER SERVICE CENTERS TO
CONSERVE RESOURCES. THEREAFTER, STUDIES WERE UNDERTAKEN BY DISTRICT AND
REGIONAL PERSONNEL IN CONNECTION WITH SUGGESTIONS AND DISCUSSIONS AT THE
DECEMBER 5 MEETING. AS A RESULT OF THESE STUDIES, THE REGIONAL
COMMISSIONER DECIDED TO TRANSFER THE MICROFILM RESEARCH AND MANUALLY
MONITORED INSTALLMENT AGREEMENTS FUNCTIONS, AMONG OTHERS, FROM THE
DISTRICTS, INCLUDING BROOKLYN, TO THE SERVICE CENTERS. (R.A. EXH. ID:
TR. 128). THESE FUNCTIONS WERE PERFORMED IN THE BROOKLYN OFFICE BY THE
OFFICE MANAGEMENT BRANCH. (TR. 76).
THE ROUTINE MICROFILM RESEARCH FUNCTION WAS TRANSFERRED TO THE
BROOKHAVEN SERVICE CENTER DURING THE FIRST WEEK OF JANUARY 1979. (TR.
94-95, 109, 128). THERE WERE THREE INDIVIDUALS PERFORMING THE MICROFILM
RESEARCH TASK PRIOR TO THE TRANSFER. ONE OF THESE INDIVIDUALS PERFORMED
MICROFILM RESEARCH ON A FULL-TIME BASIS, AND TWO CLERICAL EMPLOYEES DID
THE RESEARCH APPROXIMATELY TWENTY PERCENT OF THEIR TIME. AFTER THE
TRANSFER, THE INDIVIDUAL DEVOTING FULL-TIME TO MICROFILM RESEARCH DUTIES
CONTINUED TO PERFORM SPECIAL MICROFILM RESEARCH FULL-TIME, BUT, WITH THE
LOSS OF THE ROUTINE RESEARCH, THE CLERICAL EMPLOYEES THEN DEVOTED
FULL-TIME TO THEIR CLERICAL DUTIES. (TR. 94-98; 111-112; 139-141).
PRIOR TO THE TRANSFER IT TOOK REVENUE OFFICERS 4-7 DAYS TO OBTAIN A
REPLY TO A ROUTINE MICROFILM RESEARCH REQUEST. AFTER THE TRANSFER,
10-12 DAYS WAS REQUIRED FOR A REPLY. (TR. 99).
ON JANUARY 11, 1978, CUBIE DAWSON, CHIEF, COLLECTIONS DIVISION,
BROOKLYN DISTRICT OFFICE, MET WITH HIS BRANCH CHIEFS. HE ADVISED THEM
OF THE REGIONAL COMMISSIONER'S PLANS TO TRANSFER CERTAIN FUNCTIONS TO
THE BROOKHAVEN SERVICE CENTER. (TR. 127). HE TOOK NO STEPS AT THIS
TIME TO NOTIFY THE UNION. (TR. 130). THE PRACTICE AT THIS TIME OF
NOTIFYING THE UNION OF CHANGES IN PERSONNEL POLICIES, PRACTICES AND
WORKING CONDITIONS WAS FOR MR. DAWSON OR HIS ASSISTANT, MR. ZARUCHES, TO
NOTIFY GEORGE BRAVERMAN, PRESIDENT OF THE UNION, OR, IF MR. BRAVERMAN
WAS NOT AVAILABLE, TO NOTIFY HERMAN MODIN, VICE PRESIDENT FOR
COLLECTION, AND ASK THAT MR. MODIN NOTIFY MR. BRAVERMAN. IN ADDITION,
THE BRANCH CHIEFS NORMALLY NOTIFIED THE UNION STEWARDS IN THEIR
RESPECTIVE BRANCHES. (TR. 87-91; 116; 190-191).
JOE A. GARGANO, FIELD BRANCH CHIEF, COLLECTION DIVISION, ATTENDED THE
BRANCH CHIEFS MEETING ON JANUARY 11, 1978. MR. GARGANO HAD NO
MANAGEMENT RESPONSIBILITY FOR THE OFFICE BRANCH, WHICH WAS PRIMARILY
AFFECTED BY THE TRANSFER OF FUNCTIONS, BUT DECIDED TO INFORM HERMAN
MODIN, UNION VICE PRESIDENT FOR COLLECTIONS AND STEWARD FOR THE REVENUE
OFFICERS IN HIS BRANCH, ON JANUARY 17, 1978, BECAUSE MR. MODIN HAD BEEN
COMPLAINING ABOUT THE DETAILING OF REVENUE OFFICERS TO THE OFFICE
BRANCH, AND MR. GARGANO BELIEVED THAT THE TRANSFER OF FUNCTIONS WOULD
REDUCE THE NUMBER OF HOURS REVENUE OFFICERS WERE SO DETAILED. (TR.
155-156; 161-162, 171; REG. ADM. EXH. 1D-1).
MR. GARGANO ADVISED MR. MODIN, AMONG OTHER THINGS, THAT, "ALL
MICROFILM RESEARCH WAS BEING SCHEDULED TO BE HANDLED EXCLUSIVELY BY THE
BROOKHAVEN SERVICE CENTER," AND "MANUAL PART-PAYMENT AGREEMENTS WILL
ALSO BE TRANSFERRED TO THE SERVICE CENTER." (REG. ADM. EXH. 1D-1). MR.
GARGANO WAS NOT AWARE OF WHICH CHANGES HAD OR HAD NOT BEEN IMPLEMENTED
AT THIS TIME. (TR. 164, 170).
HERMAN MODIN TESTIFIED THAT SHORTLY AFTER HIS JANUARY 17, 1978
CONVERSATION WITH MR. GARGANO, HE TELEPHONED GEORGE BRAVERMAN, PRESIDENT
OF THE UNION, TO INFORM HIM OF THE TRANSFER OF THE TWO FUNCTIONS. (TR.
183). MR. BRAVERMAN TESTIFIED THAT HE RECEIVED NO SUCH CALL. (TR.
200-201). I CREDIT MR. MODIN'S TESTIMONY IN THIS REGARD. MR. MODIN IS
A KEY OFFICE HOLDER IN THE UNION, AND HIS TESTIMONY WAS, ARGUABLY,
CONTRARY TO THE INTEREST OF THE UNION, WHILE MR. BRAVERMAN'S TESTIMONY
IN THIS REGARD IS SUBSTANTIALLY SELF-SERVING.
THE MAINTENANCE OF NON-IDES MONITORED INSTALLMENT AGREEMENTS, OR
MANUAL PART PAYMENT FUNCTION, WAS TRANSFERRED FROM THE BROOKLYN DISTRICT
TO THE BROOKHAVEN SERVICE CENTER ON FEBRUARY 12 OR 13, 1978 (TR. 133).
THE MANUAL PART PAYMENT FUNCTION IN THE BROOKLYN DISTRICT WAS
PERFORMED BY RESEARCH ADJUSTMENT EXAMINERS AS A SMALL PORTION OF THEIR
DUTIES PRIOR TO THE TRANSFER. PRIOR TO THE TRANSFER, THIS FUNCTION
ENTAILED EXAMINERS REVIEWING PART PAYMENT FILES APPROXIMATELY FOUR HOURS
A MONTH TO ASSURE THAT INSTALLMENT OR PART PAYMENT AGREEMENTS WITH
TAXPAYERS WERE CURRENT AND WERE NOT IN DEFAULT. AFTER THE PRIMARY
RESPONSIBILITY FOR THE FUNCTION WAS TRANSFERRED TO THE SERVICE CENTER,
THESE SAME EXAMINERS IN THE BROOKLYN DISTRICT CONTINUED TO QUALITY
REVIEW THE FILES TO MAKE SURE THAT PAYMENT PLANS WERE EQUITABLE AND IN
KEEPING WITH INTERNAL REVENUE MANUAL PROVISIONS. HOWEVER, INSTEAD OF
FOUR HOURS, THEY SPENT APPROXIMATELY AN HOUR ON THE REVIEW FUNCTION.
THE ONLY PORTION OF THE FUNCTION WHICH WAS NOT PERFORMED IN BROOKLYN
AFTER THE TRANSFER WAS THE POSTING OF PAYMENTS IN FILES AND A MONTHLY
REVIEW TO INSURE THAT PAYMENTS WERE UP TO DATE. (TR. 113-114, 147-148).
MR. NATHAN ZARUCHES, ASSISTANT CHIEF, COLLECTION DIVISION, TESTIFIED
THAT AFTER THE MICROFILM RESEARCH AND MANUAL PART PAYMENT FUNCTION HAD
BEEN TRANSFERRED TO THE BROOKHAVEN SERVICE CENTER, HE HAD AN INFORMAL
MEETING WITH GEORGE BRAVERMAN, PRESIDENT OF THE UNION, SOMETIME BETWEEN
THE FIRST AND THIRD WEEKS IN FEBRUARY 1978. (TR. 69-70, 75, 77). MR.
BRAVERMAN TOLD MR. ZARUCHES THAT IT WAS HIS UNDERSTANDING THAT SOME
FUNCTIONS HAD BEEN TRANSFERRED. MR. ZARUCHES ACKNOWLEDGED THAT FOUR
FUNCTIONS, INCLUDING MICROFILM RESEARCH AND MANUAL PART PAYMENT, HAD
BEEN TRANSFERRED AND THAT EIGHT OTHERS WERE STILL UNDER CONSIDERATION.
MR. ZARUCHES GAVE MR. BRAVERMAN A COPY OF A MEMORANDUM DATED FEBRUARY
2, 1978 WHICH HAD BEEN RECEIVED FROM THE ASSISTANT REGIONAL COMMISSIONER
AND WHICH LISTED THE VARIOUS FUNCTIONS WHICH WERE BEING CONSIDERED FOR
CHANGE, OR ON WHICH SOME ACTION HAD BEEN TAKEN (TR. 69; REG. ADM. EXH.
1=D-3).
MR. BRAVERMAN TESTIFIED THAT HE RECALLED NO SUCH MEETING WITH MR.
ZARUCHES IN FEBRUARY 1978, AND THAT HIS REVIEW OF HIS DAILY LOCATOR
RECORDS AND APPOINTMENT BOOK REFLECTED NO SUCH MEETING. (TR. 22-23).
HOWEVER, I CREDIT MR. ZARUCHES' TESTIMONY CONCERNING THE MEETING,
PRIMARILY ON THE BASIS OF HIS FIRM RECOLLECTION CONCERNING THE
CIRCUMSTANCES UNDER WHICH HE GAVE THE FEBRUARY 2, 1978 MEMORANDUM TO MR.
BRAVERMAN.
MR. BRAVERMAN RECEIVED INQUIRIES ABOUT THE TRANSFERS FROM EMPLOYEES
IN THE MINEOLA OFFICE. THEY WERE CONCERNED ABOUT THEIR JOB OR POSITION
DESCRIPTIONS BEING CHANGED AS A RESULT OF THE TRANSFER. (TR. 32-33,
36).
ON MARCH 7, 1978 MR. BRAVERMAN AND MR. MODIN MET WITH CUBIE DAWSON,
CHIEF, COLLECTIONS DIVISION AND FRANK RAMAGITO, CHIEF OF PERSONNEL,
CONCERNING ANOTHER MATTER. AT THE CONCLUSION OF THE MEETING, MR.
BRAVERMAN INQUIRIED ABOUT THE TRANSFER OF FUNCTIONS TO THE BROOKHAVEN
SERVICE CENTER. MR. DAWSON REPLIED THAT MICROFILM RESEARCH HAD BEEN
TRANSFERRED, BUT HE WAS NOT SURE AS TO THE EXACT DATES OF THE TRANSFER
OF OTHER ITEMS, OR WHETHER, IN FACT, THEY WOULD BE TRANSFERRED. MR.
DAWSON WAS NOT AWARE AT THE TIME THAT THE MANUAL PART PAYMENTS FUNCTION
HAD ALREADY BEEN TRANSFERRED. MR. BRAVERMAN STATED THAT THIS MATTER
SHOULD HAVE BEEN DISCUSSED WITH THE UNION BEFOREHAND AS HE MIGHT WANT TO
NEGOTIATE THE IMPLEMENTATION AND IMPACT. MR. DAWSON REPLIED THAT THE
DECISION WAS MADE BY THE REGIONAL OFFICE AND, AS FAR AS HE WAS
CONCERNED, IT WOULD NOT HAVE ANY SIGNIFICANT IMPACT ON THE OPERATION.
ACCORDINGLY, HE DID NOT AGREE THAT THIS WAS A MATTER THEY NEEDED TO
NEGOTIATE. NO FURTHER DETAILS CONCERNING THE TRANSFERS WERE PROVIDED.
(TR. 32-35; 134-137; 143-144).
THE UNFAIR LABOR PRACTICE CHARGE WAS FILED APRIL 19, 1978. THE
RESPONDENT'S REPLY OF JUNE 20, 1978 NOTES THAT DURING THE PERTINENT
PERIOD THE UNION "DID NOT PRESENT ANY INFORMATION TO SHOW THAT THERE WAS
SOME NEGOTIABLE IMPACT OR TO PROVIDE IMPACT AREAS FOR US TO DISCUSS."
THE REPLY ALSO STATED, "SHOULD NTEU SUBMIT NEGOTIABLE ITEMS, WE WILL, OF
COURSE, DISCUSS THEM WITH YOU." (REG. ADM. EXH. 1B-2).
THE ROUTINE MICROFILM RESEARCH AND MANUAL PART PAYMENT FUNCTIONS WERE
RETURNED FROM THE BROOKHAVEN SERVICE CENTER TO THE BROOKLYN DISTRICT
OFFICE IN OCTOBER OR NOVEMBER, 1978.
DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
A. PROCEDURAL MATTERS
AT THE HEARING IN THIS MATTER, COMPLAINANT ATTEMPTED, FOR THE FIRST
TIME, TO EXPAND THE SCOPE OF THEIR COMPLAINT TO INCLUDE THE TRANSFER OF
THE TD1 INITIAL PROCESSING FUNCTION TO THE BROOKHAVEN SERVICE CENTER.
BOTH THE CHARGE AND COMPLAINT REFER "SPECIFICALLY" TO THE TRANSFER OF
THE MICROFILM RESEARCH AND MANUAL PART PAYMENT FUNCTION. THE AGENCY
RESPONSE ALSO ADDRESSES ONLY THE LEGAL RAMIFICATIONS OF THE TRANSFER OF
THE TWO FUNCTIONS. AS FOUND ABOVE, COMPLAINANT WAS AWARE AT THE TIME
THE CHARGE WAS FILED THAT OTHER FUNCTIONS WERE BEING TRANSFERRED. THE
AGENCY WAS NOT ON PROPER NOTICE OF, OR PREPARED, TO LITIGATE OTHER
MATTERS AT THE HEARING. SINCE OTHER MATTERS WERE NOT PROPERLY RAISED IN
EITHER THE PRE-COMPLAINT CHARGE OR THE COMPLAINT, THEY WILL NOT BE
CONSIDERED. DEPARTMENT OF THE NAVY, NORFOLK NAVAL SHIPYARD, A/SLMR NO.
967(1978).
B. TRANSFER OF MICROFILM RESEARCH AND MANUAL PART PAYMENT FUNCTIONS
NOTWITHSTANDING THE FACT THAT A PARTICULAR MANAGEMENT DECISION IS
NONNEGOTIABLE BECAUSE IT FALLS WITHIN THE AMBIT OF SECTION 11(B) OR
12(B) OF THE ORDER, THE AGENCY OR ACTIVITY MUST, NEVERTHELESS, AFFORD AN
EXCLUSIVE REPRESENTATIVE REASONABLE NOTICE AND AN OPPORTUNITY TO BARGAIN
WITH RESPECT TO THE IMPACT AND IMPLEMENTATION OF SUCH ACTION, PRIOR TO
ITS IMPLEMENTATION, WHEN SUCH ACTION EFFECTS A CHANGE IN EXISTING
PERSONNEL POLICIES AND PRACTICES OR WORKING CONDITIONS OF UNIT
EMPLOYEES, PROVIDED IT DOES NOT INTERFERE WITH THE EXERCISE OF THE
RESERVED RIGHTS THEMSELVES. DEPARTMENT OF HEALTH, EDUCATION AND
WELFARE, SOCIAL SECURITY ADMINISTRATION, BRSI, NORTHEASTERN PROGRAM
SERVICE CENTER, A/SLMR NO. 984(1978); U.S. CUSTOMS SERVICE, REGION VII,
LOS ANGELES, CALIFORNIA, A/SLMR NO. 1066(1978); DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE, BROOKHAVEN SERVICE CENTER, 7 A/SLMR
255, A/SLMR NO. 814(1977).
RESPONDENTS CONTEND THAT THE TRANSFERS HAD NO "SIGNIFICANT" IMPACT;
THUS, THEY WERE UNDER NO OBLIGATION TO NOTIFY COMPLAINANT PRIOR TO
IMPLEMENTATION, RELYING ON DEPARTMENT OF THE NAVY, NORFOLK NAVAL
SHIPYARD, 7 A/SLMR 199, A/SLMR NO. 805(1977); DEPARTMENT OF DEFENSE,
AIR NATIONAL GUARD, TEXAS AIR NATIONAL GUARD, CAMP MABRY, AUSTIN, TEXAS,
6 A/SLMR 591, A/SLMR NO. 738(1976); NAVAL COMMUNICATIONS AREA, MASTER
STATION EASTPAC, HONOLULU, A/SLMR NO. 1035(1978); AND DEPARTMENT OF
THE TREASURY, INTERNAL REVENUE SERVICE, BROOKHAVEN SERVICE CENTER,
SUPRA. THESE CASES ARE INAPPOSITE. AS THE ASSISTANT SECRETARY POINTED
OUT IN DEPARTMENT OF DEFENSE, DEPARTMENT OF THE NAVY, NAVAL TRAINING
CENTER, GREAT LAKES, ILLINOIS, A/SLMR NO. 1175, FN. 3(DEC. 29, 1978),
THE TEXAS AIR NATIONAL GUARD CASE INVOLVED PROHIBITING THE CONSUMPTION
OF ALCOHOLIC BEVERAGES, AND THE NAVAL COMMUNICATIONS AREA CASE INVOLVED
THE USE OF VOLUNTEER BARTENDERS, BOTH AREAS NOT TRADITIONALLY ASSOCIATED
WITH PERSONNEL POLICIES, PRACTICES, AND GENERAL WORKING CONDITIONS.
FURTHER, IN THE NORFOLK NAVAL SHIPYARD CASE, INVOLVING A CHANGE IN THE
MANNER OF ENFORCEMENT OF TRAFFIC REGULATIONS, IT WAS FOUND THAT NO
CHANGE HAD OCCURRED IN THE PERSONNEL POLICIES, PRACTICES, OR GENERAL
WORKING CONDITIONS OF FEDERAL EMPLOYEES. LIKEWISE, IN BROOKHAVEN
SERVICE CENTER IT WAS FOUND THAT ABSENT ANY EVIDENCE OF CHANGE IN THE
ACTUAL DUTIES PERFORMED BY CONTROL CLERKS, THE AGENCY WAS UNDER NO
OBLIGATION TO INFORM THE UNION PRIOR TO ISSUING A NEW STANDARD POSITION
DESCRIPTION.
RESPONDENT'S DECISION TO TRANSFER THE MICROFILM RESEARCH AND MANUAL
PART PAYMENT FUNCTIONS FROM THE BROOKLYN DISTRICT OFFICE TO THE
BROOKHAVEN SERVICE CENTER DID EFFECT A CHANGE IN THE WORKING CONDITIONS
OF UNIT EMPLOYEES. THE EVIDENCE SHOWS THAT TWO CLERICAL EMPLOYEES WHO
PREVIOUSLY WORKED ON ROUTINE MICROFILM RESEARCH ABOUT TWENTY PERCENT OF
THEIR TIME NO LONGER PERFORMED SUCH WORK AFTER THE TRANSFER. THE
EVIDENCE ALSO SHOWS THAT AFTER THE TRANSFER IT TOOK REVENUE OFFICERS
FIVE OR SIX DAYS LONGER TO OBTAIN REPLIES TO ROUTINE MICROFILM RESEARCH
REQUESTS AND, CONSEQUENTLY, IT TOOK THEM LONGER TO COMPLETE THEIR CASE
ASSIGNMENTS. SIMILARLY, AFTER THE TRANSFER OF THE MANUAL PART PAYMENT
FUNCTION, EXAMINERS SPENT FOUR HOURS LESS PER MONTH ON THE REVIEW OF
PART PAYMENT FILES AND THE POSTING OF SUCH PAYMENTS WAS NO LONGER
PERFORMED AT THE BROOKLYN DISTRICT OFFICE. ONE MANAGER BELIEVED THAT
THE TRANSFER OF THESE FUNCTIONS, TOGETHER WITH OTHERS, WOULD REDUCE THE
NUMBER OF HOURS REVENUE OFFICERS WERE DETAILED FROM THE FIELD BRANCH TO
THE OFFICE BRANCH, AND SOME EMPLOYEES WERE CONCERNED ABOUT THEIR JOBS OR
POSITION DESCRIPTIONS BEING CHANGED AS A RESULT OF THE TRANSFERS.
THE CHANGE DIRECTLY AFFECTED EMPLOYEES DURING DUTY HOURS, WAS
DIRECTLY JOB-RELATED, AND EMPLOYEES HAD REASONABLE JOB-RELATED CONCERNS
ABOUT POSSIBLE TANGENTIAL CONSEQUENCES. THUS, IT IS CONCLUDED THAT
RESPONDENT BROOKLYN DISTRICT OFFICE, IRS, WAS REQUIRED TO AFFORD THE
COMPLAINT REASONABLE NOTICE AND AN OPPORTUNITY TO BARGAIN WITH RESPECT
TO THE IMPACT AND IMPLEMENTATION OF SUCH ACTION PRIOR TO ITS
IMPLEMENTATION. CF. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL
SECURITY ADMINISTRATION, BRSI, NORTHEASTERN PROGRAM SERVICE CENTER,
A/SLMR NO. 984(FEB. 6, 1978) AND A/SLMR NO. 1150(NOV. 17, 1978)
(DECISION TO TRANSFER CLAIMS CASES EFFECTED A CHANGE IN EMPLOYEE TERMS
AND CONDITIONS OF EMPLOYMENT). ABSENT SOME FORM OF NATIONAL RECOGNITION
OR NATIONAL CONSULTATION RIGHTS, RESPONDENT IRS, AS OPPOSED TO
RESPONDENT BROOKLYN DISTRICT OFFICE, IRS, HAD NO OBLIGATION TO BARGAIN
OR CONSULT WITH NTEU WITH RESPECT TO MATTERS CONCERNING LOCAL
MANAGEMENT
DECISIONS. INTERNAL REVENUE SERVICE AND INTERNAL REVENUE SERVICE, SOUTH
CAROLINA DISTRICT OFFICE, A/SLMR NO. 1027(1978).
IT IS CLEAR THAT NO PRIOR NOTICE WAS AFFORDED COMPLAINANT WITH
RESPECT TO THE TRANSFER OF THE MICROFILM RESEARCH FUNCTION. RESPONDENTS
CONTEND HOWEVER, THAT PRIOR NOTICE WAS AFFORDED TO COMPLAINANT WITH
RESPECT TO THE PROPOSED TRANSFER OF THE MANUAL PART PAYMENT FUNCTION
THROUGH FIELD BRANCH CHIEF GARGANO'S CONVERSATION WITH CHAPTER VICE
PRESIDENT AND FIELD BRANCH STEWARD MODIN ON JANUARY 17, 1978 AND
ASSISTANT COLLECTION DIVISION CHIEF ZARUCHES CONVERSATION WITH CHAPTER
PRESIDENT BRAVERMAN SOMETIME AFTER FEBRUARY 2, 1978. THE MANUAL PART
PAYMENT FUNCTION WAS TRANSFERRED ON FEBRUARY 12 OR 13, 1978.
MR. ZARUCHES TESTIFIED THAT BOTH FUNCTIONS HAD BEEN TRANSFERRED
BEFORE HIS CONVERSATION WITH MR. BRAVERMAN SOMETIME AFTER FEBRUARY 2,
1978. I CREDIT HIS TESTIMONY. THUS, THIS CONVERSATION WITH MR.
BRAVERMAN DID NOT CONSTITUTE PRIOR NOTICE.
WITH RESPECT TO MR. GARGANO'S CONVERSATION WITH MR. MODIN, IT WAS
ESTABLISHED THAT A PAST PRACTICE EXISTED WHEREBY EITHER MR. DAWSON OR
MR. ZARUCHES WOULD SOMETIMES NOTIFY MR. MODIN AND ASK HIM TO RELAY THE
INFORMATION TO MR.BRAVERMAN. THERE WAS, HOWEVER, NO EVIDENCE THAT MR.
GARGANO, WHO HAD NO MANAGEMENT RESPONSIBILITY FOR THE OFFICE BRANCH, WAS
USED BY MR. DAWSON OR MR. ZARUCHES TO NOTIFY THE UNION OF OFFICE BRANCH
CHANGES THROUGH MR. MODIN. MR. GARGANO MERELY DISCUSSED MATTERS WITH
MR. MODIN AS THE FIELD BRANCH STEWARD, AND HIS CONVERSATION ON JANUARY
17, 1978 WAS REGARDED BY BOTH MR. GARGANO AND MR. DAWSON SIMPLY AS A
CONVERSATION BETWEEN THE FIELD BRANCH CHIEF AND THE FIELD BRANCH
STEWARD. THERE WAS NO INDICATION THAT HE SHOULD NOTIFY MR. MODIN, OR
THAT MANAGEMENT WAS RECEPTIVE TO CONSULTATION ON THE ISSUE. CF. GENERAL
SERVICES ADMINISTRATION, REGION 3, PUBLIC BUILDINGS SERVICE, CENTRAL
SUPPORT FIELD OFFICE, A/SLMR 583(1975). MR. GARGANO WAS NOT EVEN AWARE
ON JANUARY 17, 1978 OF WHICH CHANGES HAD OR HAD NOT BEEN IMPLEMENTED.
THEREFORE, ALTHOUGH MR. MODIN MADE MR. BRAVERMAN AWARE OF HIS
CONVERSATION WITH MR. GARGANO, THIS NOTICE TO MR. MODIN DID NOT
CONSTITUTE THE TYPE OF PRECISE NOTIFICATION BY RESPONDENT ENVISAGED BY
THE ORDER WHICH WOULD HAVE ENABLED THE COMPLAINANT TO BARGAIN IN A
MEANINGFUL MANNER, PRIOR TO THE CHANGE, CONCERNING THE IMPACT AND
IMPLEMENTATION OF THE MANAGEMENT DECISION. CF. JACKSONVILLE DISTRICT,
INTERNAL REVENUE SERVICE, JACKSONVILLE, FLORIDA, 7 A/SLMR 758, A/SLMR
NO. 893(1977); DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
INDIANAPOLIS, INDIANA, 7 A/SLMR 844, A/SLMR NO. 909(1977).
THERE IS NO INDICATION IN THE RECORD THAT PRIOR TO, OR EVEN ON, MARCH
7, 1978, WHEN THE UNION SPECIFICALLY INQUIRED ABOUT THE TRANSFERS, THAT
MANAGEMENT RECOGNIZED THE UNION'S RIGHT TO BARGAIN ON THE IMPACT AND
IMPLEMENTATION OF THE CHANGE. RESPONDENTS POINT OUT THAT COMPLAINANT AT
NO TIME SUBMITTED PROPOSALS FOR NEGOTIATION OVER IMPACT AND
IMPLEMENTATION. HOWEVER, THERE IS NO REQUIREMENT THAT AN EXCLUSIVE
REPRESENTATIVE'S, REQUEST FOR IMPACT BARGAINING MUST SET FORTH OR
INCLUDE ITS PROPOSALS THEREIN, SOCIAL SECURITY ADMINISTRATION, BUREAU OF
HEARINGS AND APPEALS, A/SLMR NO. 1176(1978) OR, WHERE IT HAS NOT BEEN
AFFORDED REASONABLE NOTICE, EVEN THAT A REQUEST BE MADE AFTER THE FACT
TO ESTABLISH A VIOLATION. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, AUSTIN SERVICE CENTER, AUSTIN, TEXAS, A/SLMR NO. 1142(1978).
THE RECORD REFLECTS THAT SINCE THE CHARGE WAS FILED, RESPONDENT HAS
INDICATED ITS WILLINGNESS TO DISCUSS ANY IMPACT ITEMS COMPLAINANT MAY
RAISE. HOWEVER, RESPONDENT DID NOT CONCEDE THAT IT HAD ANY OBLIGATION
TO COMPLAINANT IN THIS RESPECT OR THAT THERE WAS ANY IMPACT. UNDER THE
PARTICULAR CIRCUMSTANCES OF THIS CASE, I DO NOT FIND THAT RESPONDENT'S
SUBSEQUENT CONDUCT CURED THE ORIGINAL VIOLATION. COMPARE VANDENBERG
AFB, 4392D AEROSPACE SUPPORT GROUP, VANDENBURG AFB, CALIFORNIA, 3 FLRC
491,FLRC NO. 74A-77(1975).
ACCORDINGLY, I CONCLUDE THAT RESPONDENT, BROOKLYN DISTRICT OFFICE,
IRS, BY UNILATERALLY IMPLEMENTING THE TRANSFER OF THE MICROFILM RESEARCH
FUNCTION AND THE MAINTENANCE OF MANUAL PART PAYMENT FUNCTION FROM THE
BROOKLYN DISTRICT OFFICE TO THE BROOKHAVEN SERVICE CENTER VIOLATED
SECTION 19(A)(6) OF THE ORDER BY FAILING TO AFFORD THE COMPLAINANT
SPECIFIC NOTICE OF ITS INTENTIONS AND TO PROVIDE THE COMPLAINANT WITH A
REASONABLE OPPORTUNITY TO BARGAIN OVER THE PROCEDURES TO BE OBSERVED IN
IMPLEMENTING THE TRANSFERS AND ON THE IMPACT OF THE TRANSFERS ON
ADVERSELY AFFECTED EMPLOYEES. SUCH FAILURE NECESSARILY TENDS TO
INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE EXERCISE OF RIGHTS
ASSURED BY THE ORDER, IN VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
RECOMMENDATIONS
UPON THE BASIS OF THE FOREGOING FINDINGS OF FACT, CONCLUSIONS, AND
THE ENTIRE RECORD, I RECOMMEND THAT THE AUTHORITY ADOPT THE FOLLOWING
ORDER:
ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, 29
C.F.R.SECTION 203.26(B), AND SECTION 2400.2 OF THE TRANSITION RULES AND
REGULATIONS, 5 C.F.R. SECTION 2400.2(1979), THE AUTHORITY HEREBY ORDERS
THAT THE INTERNAL REVENUE SERVICE, BROOKLYN DISTRICT OFFICE, SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING A TRANSFER OF THE ROUTINE MICROFILM RESEARCH FUNCTION
AND/OR THE MANUAL
PART PAYMENT FUNCTION FROM THE BROOKLYN DISTRICT OFFICE, IRS, TO THE
BROOKHAVEN SERVICE
CENTER, IRS, INVOLVING EMPLOYEES REPRESENTED EXCLUSIVELY BY THE
NATIONAL TREASURY EMPLOYEES
UNION AND NTEU, CHAPTER 53, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF
ITS EMPLOYEES, WITHOUT
FIRST NOTIFYING THE EXCLUSIVE REPRESENTATIVE AND AFFORDING IT THE
OPPORTUNITY TO MEET AND
CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
PROCEDURES WHICH MANAGEMENT
WILL OBSERVE IN IMPLEMENTING SUCH A TRANSFER AND ON THE IMPACT SUCH
TRANSFER WILL HAVE ON
ADVERSELY AFFECTED UNIT EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST, MEET AND CONFER WITH THE NATIONAL TREASURY
EMPLOYEES UNION AND NTEU
CHAPTER 53, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS,
CONCERNING THE PROCEDURES WHICH
MANAGEMENT OBSERVED IN TRANSFERRING THE ROUTINE MICROFILM RESEARCH
FUNCTION AND/OR THE MANUAL
PAST PAYMENT FUNCTION AND THE IMPACT SUCH TRANSFERS HAD ON ADVERSELY
AFFECTED EMPLOYEES IN THE
EXCLUSIVELY RECOGNIZED UNIT.
(B) POST AT ALL INTERNAL REVENUE SERVICE, BROOKLYN DISTRICT OFFICE
FACILITIES AND
INSTALLATIONS COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
FORMS TO BE FURNISHED BY THE
AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
DIRECTOR OF THE BROOKLYN
DISTRICT OFFICE AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER,
IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE DISTRICT DIRECTOR SHALL TAKE
REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(C) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN
TO COMPLY HEREWITH.
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED: MAY 10, 1979
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 EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INSTITUTE A TRANSFER OF THE ROUTINE MICROFILM RESEARCH
FUNCTION AND/OR THE MANUAL PART PAYMENT FUNCTION FROM THE BROOKLYN
DISTRICT OFFICE, IRS, TO THE BROOKHAVEN SERVICE CENTER, IRS, INVOLVING
EMPLOYEES REPRESENTED EXCLUSIVELY BY THE NATIONAL TREASURY EMPLOYEES
UNION AND NTEU, CHAPTER 53, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF OUR
EMPLOYEES, WITHOUT FIRST NOTIFYING THE EXCLUSIVE REPRESENTATIVE AND
AFFORDING IT THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS, ON THE PROCEDURES WHICH MANAGEMENT WILL
OBSERVE IN IMPLEMENTING SUCH A TRANSFER AND ON THE IMPACT SUCH TRANSFER
WILL HAVE ON ADVERSELY AFFECTED UNIT EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST, MEET AND CONFER WITH THE NATIONAL TREASURY
EMPLOYEES UNION AND NTEU CHAPTER 53, TO THE EXTENT CONSONANT WITH LAW
AND REGULATIONS, CONCERNING THE PROCEDURES WHICH MANAGEMENT OBSERVED IN
TRANSFERRING THE ROUTINE MICROFILM RESEARCH FUNCTION AND/OR THE MANUAL
PART PAYMENT FUNCTION FROM THE BROOKLYN DISTRICT OFFICE, IRS, TO THE
BROOKHAVEN SERVICE CENTER, IRS, AND THE IMPACT SUCH TRANSFERS HAD ON
ADVERSELY AFFECTED EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
(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, FEDERAL LABOR RELATIONS AUTHORITY, ROOM 1751, 26
FEDERAL PLAZA, NEW YORK, NEW YORK 10007.
/1/ THE ADMINISTRATIVE LAW JUDGE FOUND THERE WAS NO BASIS ON WHICH TO
FIND RESPONDENT INTERNAL REVENUE SERVICE (AS OPPOSED TO RESPONDENT
BROOKLYN DISTRICT OFFICE, IRS) HAD FAILED TO MEET ITS OBLIGATIONS UNDER
THE EXECUTIVE ORDER. NO EXCEPTIONS WERE TAKEN TO THAT FINDING.
/2/ DURING THE COURSE OF THE HEARING, THE UNION ATTEMPTED TO EXPAND
THE SCOPE OF THE COMPLAINT TO INCLUDE THE TRANSFER OF OTHER JOB
FUNCTIONS WHICH WERE REFERRED TO IN NEITHER THE COMPLAINT, AS AMENDED,
NOR THE RESPONDENTS' ANSWER THERETO. THE ADMINISTRATIVE LAW JUDGE FOUND
THAT THE UNION WAS AWARE OF THESE MATTERS AT THE TIME THE CHARGE WAS
FILED AND CONCLUDED THAT SINCE THEY WERE NOT RAISED IN EITHER THE
PRE-COMPLAINT CHARGE OR THE COMPLAINT, HE WOULD REFUSE TO CONSIDER THEM,
RELYING ON DEPARTMENT OF THE NAVY, NORFOLK NAVAL SHIPYARD, A/SLMR NO.
967(1978). NOTING THAT NO EXCEPTIONS WERE FILED CONCERNING THE FINDINGS
AND CONCLUSIONS OF THE ADMINISTRATIVE LAW JUDGE IN THIS RESPECT THEY ARE
HEREBY AFFIRMED BY THE AUTHORITY.
/3/ CF. SOUTHEAST EXCHANGE REGION OF ARMY AIR FORCE EXCHANGE SERVICE,
ROSEWOOD WAREHOUSE, COLUMBIA, SOUTH CAROLINA, 6 A/SLMR 237, A/SLMR NO.
656(1976); U.S. DEPARTMENT OF AIR FORCE, NORTON AIR FORCE BASE, 3
A/SLMR 175, A/SLMR NO. 261(1973).
/4/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.