[ v07 p371 ]
07:0371(54)CA
The decision of the Authority follows:
7 FLRA No. 54
INTERNAL REVENUE SERVICE
FRESNO SERVICE CENTER
FRESNO, CALIFORNIA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case Nos. 9-CA-366
9-CA-409
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION AND ORDER
IN THE ABOVE-ENTITLED CONSOLIDATED PROCEEDINGS, FINDING THAT THE
RESPONDENT, INTERNAL REVENUE SERVICE, FRESNO SERVICE CENTER (IRS), HAD
ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT CEASE
AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS. THE JUDGE
FURTHER FOUND THAT THE RESPONDENT HAD NOT ENGAGED IN OTHER ALLEGED
UNFAIR LABOR PRACTICES AND RECOMMENDED DISMISSAL OF THE COMPLAINT WITH
RESPECT TO THEM. THEREAFTER, THE IRS, THE CHARGING PARTY (NTEU) AND THE
GENERAL COUNSEL FILED RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION
OF THE JUDGE'S JANUARY THROUGH JUNE. THE PROMOTIONS ARE DOCUMENTED BY A
FORM 50 (NOTIFICATION OF PERSONNEL ACTION). UPON TERMINATION SUCH
DECISION ON ADVERSELY AFFECTED EMPLOYEES. IN FURTHER OF DISCRIMINATION.
IN ADDITION TO AN EEO COUNSELOR, THE EMPLOYEE 7114(A)(2)(A). /6/
RATHER, THE AUTHORITY FINDS THAT THE SUBJECT OF THE MEETING CONCERNED A
"GRIEVANCE" WITHIN THE DISCUSSIONS WITHIN THE MEANING OF SECTION
7114(A)(2)(A) SO THAT IT WOULD HAVE THE OPPORTUNITY TO SELECT
REPRESENTATIVES OF ITS OWN CHOOSING TO BE PRESENT AND THAT AN ACTIVITY'S
FAILURE TO PROVIDE SUCH NOTICE WAS VIOLATIVE OF THE STATUTE. THE FACT
THAT AN EMPLOYEE WHO HAPPENS TO BE A UNION STEWARD MAY BE PRESENT AT
SUCH A DISCUSSION DOES NOT WARRANT A CONTRARY CONCLUSION. /10/
FINALLY, IN AGREEMENT WITH THE JUDGE, AND FOR THE SAME REASONS, THE
AUTHORITY FINDS THAT THE TREATMENT ACCORDED THE NTEU STEWARD BY THE
CHIEF OF THE COMPUTER BRANCH DID NOT CONSTITUTE UNLAWFUL INTERFERENCE
WITH THE STEWARD IN HER REPRESENTATIONAL CAPACITY. /11/
FOR THE FOREGOING REASONS, THE AUTHORITY FINDS THAT THE IRS, BY ITS
FAILURE TO AFFORD NTEU APPROPRIATE PRIOR NOTIFICATION OF A FORMAL
DISCUSSION, VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE.
ORDER
PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE RESPONDENT INTERNAL REVENUE SERVICE, FRESNO SERVICE CENTER,
SHALL:
1. CEASE AND DESIST FROM: IRS, BY ITS FAILURE TO AFFORD NTEU
APPROPRIATE PRIOR NOTIFICATION OF A FORMAL DISCUSSION, VIOLATED SECTION
7116(A)(1), (5) AND (8) OF THE STATUTE.
ORDER
PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE RESPONDENT INTERNAL REVENUE SERVICE, FRESNO SERVICE CENTER,
SHALL:
1. CEASE AND DESIST FROM:
(A) TERMINATING DUES DEDUCTIONS OF INDIVIDUALS PROMOTED TO THE
POSITION OF TEMPORARY SUPERVISOR WITHOUT FIRST NOTIFYING THE NATIONAL
TREASURY EMPLOYEES UNION, AND AFFORDING IT AN OPPORTUNITY TO NEGOTIATE
OVER IMPACT AND IMPLEMENTATION OF SUCH TERMINATION PRIOR TO EFFECTUATION
OF THAT ACTION.
(B) FAILING TO PROVIDE APPROPRIATE PRIOR NOTIFICATION OF, AND
OPPORTUNITY TO BE REPRESENTED AT, A FORMAL DISCUSSION BETWEEN ONE OR
MORE REPRESENTATIVES OF THE AGENCY AND ONE OR MORE EMPLOYEES IN THE UNIT
CONCERNING A GRIEVANCE.
(C) IN ANY LIKE OR RELATED MANNER FAILING OR REFUSING TO COMPLY WITH
ANY PROVISION OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(3) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF 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 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION, NEGOTIATE
OVER IMPACT AND IMPLEMENTATION OF THE TERMINATION OF DUES DEDUCTIONS OF
INDIVIDUALS PROMOTED TO THE POSITION OF TEMPORARY SUPERVISOR IN THE
FRESNO SERVICE CENTER.
(B) PROVIDE THE NATIONAL TREASURY EMPLOYEES UNION WITH APPROPRIATE
PRIOR NOTIFICATION OF, AND OPPORTUNITY TO BE REPRESENTED AT, ANY FORMAL
DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE AGENCY AND ONE OR
MORE EMPLOYEES IN THE UNIT CONCERNING A GRIEVANCE.
(C) POST AT THE FRESNO SERVICE CENTER, INTERNAL REVENUE SERVICE,
COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE FEDERAL
LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE
SIGNED BY THE DIRECTOR OF THE FRESNO SERVICE CENTER AND SHALL BE POSTED
AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY
POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(D) NOTIFY THE REGIONAL DIRECTOR, REGION IX, FEDERAL LABOR RELATIONS
AUTHORITY IN WRITING WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO
WHAT STEPS HAVE BEEN TAKEN TO COMPLY WITH THIS ORDER.
IT IS HEREBY FURTHER ORDERED THAT THE COMPLAINT IN CASE NO.
9-CA-366, INSOFAR AS IT ALLEGES VIOLATIONS OF SECTION 7116(A)(1) AND (8)
OF THE STATUTE AS A RESULT OF A FAILURE TO MAKE AN APPROPRIATE ALLOTMENT
TO AN EXCLUSIVE REPRESENTATIVE PURSUANT TO SECTION 7115, AND THE
COMPLAINT IN CASE NO. 9-CA-409, INSOFAR AS IT ALLEGES THAT THE TREATMENT
OF KATHRYN BIEHAALDER BY THE CHIEF OF THE COMPUTER BRANCH AT THE JANUARY
2, 1980, MEETING WAS VIOLATIVE OF THE STATUTE, BE, AND THEY HEREBY ARE,
DISMISSED.
ISSUED, WASHINGTON, D.C., DECEMBER 18, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 TERMINATE DUES WITHHOLDING FOR INDIVIDUALS PROMOTED TO
THE POSITION OF TEMPORARY SUPERVISOR IN THE INTERNAL REVENUE SERVICE,
FRESNO SERVICE CENTER, WITHOUT NOTIFYING THE NATIONAL TREASURY EMPLOYEES
UNION AND AFFORDING IT AN OPPORTUNITY TO NEGOTIATE OVER IMPACT AND
IMPLEMENTATION OF SUCH TERMINATION PRIOR TO EFFECTUATION OF THAT ACTION.
WE WILL NOT FAIL TO AFFORD THE NATIONAL TREASURY EMPLOYEES UNION
APPROPRIATE NOTIFICATION OF AND OPPORTUNITY TO BE REPRESENTED AT A
FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE AGENCY AND
ONE OR MORE EMPLOYEES IN THE UNIT CONCERNING A GRIEVANCE.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, FAIL OR REFUSE TO COMPLY
WITH ANY PROVISION OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
OR COERCE ANY EMPLOYEE IN THE EXERCISE OF ANY RIGHT UNDER THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL, UPON REQUEST, NEGOTIATE WITH THE NATIONAL TREASURY EMPLOYEES
UNION OVER IMPACT AND IMPLEMENTATION OF THE TERMINATION OF DUES
DEDUCTIONS OF INDIVIDUALS PROMOTED TO THE POSITION OF TEMPORARY
SUPERVISOR IN THE FRESNO SERVICE CENTER.
WE WILL PROVIDE THE NATIONAL TREASURY EMPLOYEES UNION WITH
APPROPRIATE PRIOR NOTIFICATION OF, AND OPPORTUNITY TO BE REPRESENTED AT,
ANY FORMAL DISCUSSION BETWEEN ONE OR MORE EMPLOYEES IN THE UNIT
CONCERNING A GRIEVANCE.
(ACTIVITY)
DATE:
BY: (SIGNATURE) (TITLE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, REGION IX, FEDERAL LABOR RELATIONS AUTHORITY WHOSE
ADDRESS IS: 540 BUSH STREET, SUITE 500, SAN FRANCISCO, CA. 94102.
-------------------- ALJ$ DECISION FOLLOWS --------------------
PAUL DIXON, ESQUIRE
ROBERT WILSON, ESQUIRE
FOR THE RESPONDENT
NANCY E. PRITIKIN, ESQUIRE
FOR THE GENERAL COUNSEL
ELIZABETH JOHNSON, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: BURTON S. STERNBURG
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., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED.
REG., VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV, PART
2411, ET SEQ.
PURSUANT TO AMENDED CHARGES FIRST FILED ON MARCH 3, 1980, IN CASE NO.
9-CA-366, AND MARCH 31, 1980, IN CASE NO. 9-CA-409, BY THE NATIONAL
TREASURY EMPLOYEES UNION, (HEREINAFTER CALLED THE NTEU OR UNION), A
CONSOLIDATED COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON JUNE 2, 1980,
BY THE REGIONAL DIRECTOR FOR REGION IX, FEDERAL LABOR RELATIONS
AUTHORITY, SAN FRANCISCO, CALIFORNIA. THE COMPLAINT ALLEGES, IN
SUBSTANCE, THAT THE INTERNAL REVENUE SERVICE, FRESNO SERVICE CENTER,
FRESNO, CALIFORNIA, (HEREINAFTER CALLED THE RESPONDENT OR IRS), VIOLATED
SECTIONS 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (HEREINAFTER CALLED THE STATUTE OR ACT), BY VIRTUE OF
ITS ACTIONS IN (1) UNILATERALLY TERMINATING WITHOUT PRIOR NOTICE TO THE
UNION THE DUES ALLOTMENTS OF SEVERAL EMPLOYEES AND THEREAFTER REFUSING
THE UNION'S REQUEST TO BARGAIN THEREON, AND (2) DENYING THE UNION THE
OPPORTUNITY TO REPRESENT AN EMPLOYEE AT A FORMAL AND/OR GRIEVANCE
MEETING AND, SUBSEQUENTLY, DENYING THE UNION THE RIGHT TO ACTIVELY
PARTICIPATE IN SUCH MEETING.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON JULY 8, 1980, IN
FRESNO, CALIFORNIA. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN. THE PARTIES SUBMITTED POST
HEARING BRIEFS WHICH HAVE BEEN DULY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS.
FINDINGS OF FACT
DUES WITHHOLDING
THE UNION IS THE CERTIFIED EXCLUSIVE REPRESENTATIVE OF RESPONDENT'S
EMPLOYEES AT THE FRESNO SERVICE CENTER AND PARTY TO A MULTI-CENTER
AGREEMENT WITH THE INTERNAL REVENUE SERVICE WHICH IS APPLICABLE TO SUCH
EMPLOYEES.
ACCORDING TO THE UNCONTESTED TESTIMONY OF MR. DON GEIGER, PRESIDENT
OF NTEU CHAPTER 97, IN 1977, HE MADE AN ORAL AGREEMENT WITH MR. LANCE
CASPER, RESPONDENT'S CHIEF OF LABOR RELATIONS, THAT RESPONDENT WOULD
ONLY STOP DUES DEDUCTIONS FROM UNIT EMPLOYEES PROMOTED TO THE POSITION
OF TEMPORARY SUPERVISOR, WHEN SUCH TEMPORARY PROMOTIONS EXCEEDED ONE
YEAR. /12/ MR. GEIGER FURTHER TESTIFIED THAT THEREAFTER AND UP UNTIL
DECEMBER 1979 HE WAS UNDER THE IMPRESSION THAT RESPONDENT WAS LIVING UP
TO THE AGREEMENT MADE BETWEEN HIMSELF AND MR. LANCE. ALTHOUGH MR.
GEIGER ACKNOWLEDGED THAT THE UNION RECEIVED PERIODIC PRINT-OUTS FROM
RESPONDENT SUMMARIZING THE DUES-PAYING STATUS OF THE UNIT EMPLOYEES,
INCLUDING REVOCATIONS, HE ASSUMED SUCH REVOCATIONS APPEARING THEREON
WERE OF A VOLUNTARY NATURE.
IN DECEMBER 1979, MR. GEIGER WAS INFORMED BY A UNION STEWARD EMPLOYED
IN RESPONDENT'S PERSONNEL BRANCH THAT SHE, THE STEWARD, HAD BEEN
INSTRUCTED TO START MAKING OUT PAYROLL FORM 50S FOR ALL UNIT EMPLOYEES
WHO HAD BEEN PROMOTED TO THE POSITION OF TEMPORARY SUPERVISOR. THE FORM
50S REFLECTED A WAGE INCREASE AND THE FACT THAT ANY UNION DUES
WITHHOLDING IN EFFECT WAS TO CEASE. MR. GEIGER THEN TELEPHONED MR.
SEGELKE, RESPONDENT'S CURRENT CHIEF OF LABOR RELATIONS, AND ASKED WHY
THE CHANGE HAD BEEN MADE. MR. SEGELKE DISCLAIMED ANY KNOWLEDGE OF THE
CHANGE AND INFORMED MR. GEIGER THAT HE WOULD CHECK INTO THE MATTER AND
GET BACK TO HIM. SUBSEQUENTLY, A MEETING WAS ARRANGED ON JANUARY 8TH OR
9TH, 1980, BETWEEN MR. GEIGER, MR. SEGELKE AND MS. ELLEN MOORADIAN,
CHIEF OF THE PROCESSING SECTION, PERSONNEL BRANCH.
AT THE JANUARY 8TH MEETING, MR.GEIGER WAS INFORMED THAT RESPONDENT'S
SUPERVISORY PERSONNEL IN THE PERSONNEL OFFICE HAD DETERMINED THAT THE
IRS MANUAL REQUIRED THE CESSATION OF DUES WITHHOLDING DEDUCTIONS WHEN A
UNIT EMPLOYEE WAS PROMOTED TO SUPERVISORY STATUS. AFTER A SHORT
DISCUSSION CONCERNING THE LEGALITY OF RESPONDENT'S ACTION, RESPONDENT'S
REPRESENTATIVES INFORMED MR. GEIGER THAT IT WAS RESPONDENT'S INTENTION
TO STOP THE DUES WITHHOLDING FOR ALL UNIT EMPLOYEES PROMOTED TO THE
POSITION OF TEMPORARY SUPERVISOR EFFECTIVE JANUARY 27TH. THE MEETING
ENDED WITH MR. GEIGER MAKING IT CLEAR THAT THE UNION WOULD FILE A DEMAND
FOR BARGAINING.
ON JANUARY 14, 1980, THE UNION SENT A LETTER TO RESPONDENT WHEREIN IT
DEMANDED "TO NEGOTIATE THE SUBSTANCE, IMPACT AND IMPLEMENTATION OF THE
CHANGE IN WITHHOLDING MEMBERSHIP DUES FOR NTEU MEMBERS WHO ARE
TEMPORARILY ASSIGNED AS SUPERVISORS." THE UNION TOOK THE POSITION THAT
THE "TEMPORARY PROMOTIONS DID NOT EXCLUDE AN EMPLOYEE FROM THE
BARGAINING UNIT AND THEREFORE SHOULD NOT RESULT IN STOPPING THEIR DUES
WITHHOLDING." THE UNION FURTHER STATED THAT IT WAS PREPARED TO MEET FOR
PURPOSES OF SETTING UP THE GROUND RULES FOR THE ANTICIPATED DISCUSSIONS
AND EXPECTED THAT NO IMPLEMENTATION OF THE CHANGE WOULD TAKE EFFECT
UNTIL NEGOTIATIONS WERE FINALIZED.
ON FEBRUARY 11, 1980, THE RESPONDENT RESPONDED TO THE UNION'S LETTER,
STATING IN PERTINENT PART AS FOLLOWS:
. . . MANAGEMENT IS NOT OBLIGATED TO BARGAIN ON THIS MATTER BECAUSE
THE PRACTICE OF HALTING
UNION DUES ALLOTMENT FOR TEMPORARY SUPERVISORS IS IN IMPLEMENTATION
OF GOVERNMENT-WIDE
REGULATIONS, NAMELY 5 U.S.C. 7115(A), WHICH PROVIDES FOR ALLOTMENTS
TO REPRESENTATIVES ONLY
FOR AN EMPLOYEE IN AN APPROPRIATE UNIT. CONSEQUENTLY, THIS MATTER IS
EXCLUDED FROM
NEGOTIATION IN ACCORDANCE WITH 5 U.S.C. 7117(A)(1).
THE RECORD REVEALS THAT AFTER JANUARY 27TH, RESPONDENT UNIFORMLY
STOPPED WITHHOLDING UNION DUES FROM THE WAGES OF VIRTUALLY ALL UNIT
EMPLOYEES WHO HAD BEEN PROMOTED TO THE POSITION OF TEMPORARY SUPERVISOR
FOR A PERIOD IN EXCESS OF THIRTY DAYS. MS. MOORADIAN, CHIEF OF THE
PROCESSING SECTION, PERSONNEL BRANCH, ACKNOWLEDGED THAT IN THE PAST
THERE HAD BEEN NO UNIFORM APPLICATION OF A POLICY WITH RESPECT TO
STOPPING THE DUES WITHHOLDING OF TEMPORARY SUPERVISORS.
GRIEVANCE AND/OR FORMAL MEETING
IN NOVEMBER OF 1979, MS. EDITH CALDERONE, WHO IS NO LONGER EMPLOYED
BY RESPONDENT AND WHO DID NOT TESTIFY AT THE HEARING, WAS SELECTED FOR A
POSITION AS A RESIDENT PROGRAMMER ANALYST TRAINEE IN THE FRESNO SERVICE
CENTER'S COMPUTER BRANCH. /13/ AT THE TIME OF THE SELECTION, MS.
CALDERONE, WHO WAS THEN A GS-9 COMPUTER OPERATOR, WAS INFORMED THAT IN
ORDER TO ACCEPT THE POSITION OF A PROGRAMMER ANALYST TRAINEE SHE WOULD
HAVE TO TAKE A DOWNGRADE TO A GS-7. UPON BEING INFORMED OF THE
NECESSITY FOR A DOWN GRADE, MS. CALDERONE SOUGHT ADVICE FROM MS. KATHRYN
BIEHAALDER, A KNOWN UNION STEWARD.
THEREAFTER, MS. BIEHAALDER AND MS. CALDERONE PAID A VISIT TO THE
PERSONNEL OFFICE AND INQUIRED AS TO WHAT GRADE LEVEL IN THE PROGRAM
ANALYST GS SERIES MS. CALDERONE'S BACKGROUND AND QUALIFICATIONS ENTITLED
HER TO. UPON BEING INFORMED THAT MS. CALDERONE QUALIFIED AS A GS-11, MS.
BIEHAALDER SUGGESTED THAT MS. CALDERONE FILE A CONTRACTUAL GRIEVANCE.
ADDITIONALLY, MRS. BIEHAALDER WAS OF THE OPINION THAT MS. CALDERONE HAD
THE BASIS FOR AN EEO COMPLAINT SINCE SHE WAS FORCED TO TAKE A DOWN GRADE
IN ORDER TO ACCEPT THE POSITION. MS. CALDERONE FOUND MERIT IN MS.
BIEHAALDER'S SUGGESTIONS AND DECIDED TO FILE BOTH A CONTRACTUAL AND EEO
COMPLAINT. /14/
BEING CONCERNED ABOUT THE MECHANICS OF FILING THE EEO COMPLAINT, MS.
BIEHAALDER AND MS. CALDERONE APPROACHED MS. VICKI BUTLER, RESPONDENT'S
EEO OFFICER, AND REQUESTED INFORMATION ON FILING EEO COMPLAINTS. MS.
BUTLER INFORMED MS. BIEHAALDER THAT SHE COULD NOT DISCUSS ANY EEO MATTER
WITH HER UNTIL SUCH TIME AS SHE HAD BEEN DESIGNATED AS MS. CALDERONE'S
REPRESENTATIVE. ACCORDINGLY, MS. BIEHAALDER, PUT HER OWN NAME DOWN AS
MS. CALDERONE'S REPRESENTATIVE. MS. BUTLER DENIED THAT SHE HAD REFUSED
TO ALLOW THE NTEU TO BE NAMED AS MS. CALDERONE'S REPRESENTATIVE. /15/
ON OR ABOUT NOVEMBER 23, 1979, ACCORDING TO MS. BIEHAALDER'S
TESTIMONY, MS. CALDERONE INFORMED MS. BIEHAALDER THAT SHE WAS HESITANT
TO FILE OR PURSUE HER EEO COMPLAINT BECAUSE SHE HAD BEEN AT A MEETING
WITH HER FUTURE SUPERVISOR AND BEEN INFORMED THAT HE, THE SUPERVISOR,
WAS DISAPPOINTED THAT SHE HAD GONE TO THE UNION WITH HER PROBLEM INSTEAD
OF COMING TO HIM FIRST. SHE WAS FURTHER INFORMED THAT IF SHE MADE ANY
PROBLEM WITH RESPECT TO HER SELECTION FOR THE NEW POSITION, I.E. FILING
EEO COMPLAINTS, THERE WOULD NOT BE ANY FUTURE ANNOUNCEMENTS. ALTHOUGH
NOT CLEAR FROM THE RECORD, IT APPEARS THAT MS. CALDERONE DECIDED TO
PROCEED WITH HER EEO COMPLAINT AND ALSO NOTIFY THE EEO OFFICER OF THE
THREAT OF REPRISAL.
ON JANUARY 2, 1980, MS. CALDERONE INFORMED MS. BIEHAALDER THAT MR.
BRENT HILL, CHIEF OF THE COMPUTER BRANCH HAD INSTRUCTED HER TO ATTEND A
MEETING IN THE CONFERENCE ROOM AT 3:30 P.M. THAT AFTERNOON. MS.
CALDERONE ASKED MS. BIEHAALDER TO ACCOMPANY HER TO THE MEETING. /16/
THE MEETING WHICH COMMENCED AS SCHEDULED, WAS ATTENDED BY MS.
CALDERONE, MS. BIEHAALDER, MR. BRENT HILL, MS. BUTLER AND MR. TOMMY
THOMPSON, ONE OF RESPONDENT'S EEO COUNSELORS. MR. HILL, IN ACCORDANCE
WITH AN EARLIER REQUEST FROM MR. THOMPSON, CHAIRED THE MEETING AND
ATTEMPTED TO EXPLAIN WHY RESPONDENT HAD MADE THE STARTING POSITION IN
THE TRAINEE PROGRAM A GS-7. ON A NUMBER OF OCCASIONS MS. BIEHAALDER
ATTEMPTED TO ANSWER THE QUESTIONS BEING PROPOUNDED BY MR. HILL TO MS.
CALDERONE. MR. HILL THEN INFORMED MS. BIEHAALDER THAT HE WANTED TO HEAR
THE ANSWERS FROM MS. CALDERONE AND THAT HE DID NOT HAVE TO TALK TO HER,
MS. BIEHAALDER. MS. BIEHAALDER RESPONDED THAT SHE WAS MS. CALDERONE'S
PERSONAL REPRESENTATIVE AND ALSO HER UNION REPRESENTATIVE AND WOULD SAY
WHAT SHE WANTED. THEREAFTER, THE MEETING CONTINUED WITHOUT FURTHER
INCIDENT. IN THIS LATTER REGARD, MS. BIEHAALDER TESTIFIED THAT SHE
REFRAINED FROM ANY FURTHER ACTIVE PARTICIPATION UNDER FEAR OF
PREJUDICING MS. CALDERONE'S CASE. THE RECORD REVEALS, HOWEVER, THAT MS.
BIEHAALDER DID LATER ENTER INTO SOME DISCUSSIONS WITH MANAGEMENT
REPRESENTATIVES WITH RESPECT TO THE RIGHTS OF AN EMPLOYEE TO PERSONALLY
DISCUSS PROBLEMS WITH MANAGEMENT WITHOUT A UNION REPRESENTATIVE BEING
PRESENT.
ACCORDING TO MS. BUTLER, RESPONDENT'S EEO OFFICER, THE JANUARY 2,
1980, MEETING WAS THE FIRST STEP IN THE "INFORMAL PROCESS" DESIGNED TO
REACH RESOLUTION OF EEO DISPUTES. THE FIRST STEP IS USUALLY A MEETING
BETWEEN THE COMPLAINANT AND THE RESPECTIVE SUPERVISOR INVOLVED IN THE
DISPUTE. THEREAFTER, IF RESOLUTION IS NOT REACHED, THE DISPUTE MOVES
ALONG TO EACH HIGHER LEVEL OF SUPERVISION. IF THE DISPUTE CAN NOT BE
SETTLED AT ANY OF THE SUPERVISORY LEVELS, IT THEN LEAVES THE
INSTALLATION FOR FINAL RESOLUTION BEFORE AN OUTSIDE PARTY.
DISCUSSION AND CONCLUSIONS
WITH RESPECT TO THE JANUARY 2, 1980, MEETING CALLED FOR PURPOSES OF
DISCUSSING MS. CALDERONE'S EEO COMPLAINT, RESPONDENT TAKES THE POSITION
THAT THE MEETING WAS NOT A FORMAL DISCUSSION WITHIN THE MEANING OF
SECTION 7114(A)(2)(A) OF THE STATUTE AND THAT IN ANY EVENT THE UNION WAS
NOT DENIED EITHER AN OPPORTUNITY TO REPRESENT AN EMPLOYEE AT THE MEETING
OR TO REPRESENT ITSELF AT THE MEETING. /17/ THE GENERAL COUNCIL, ON THE
OTHER HAND, TAKES THE POSITION THAT THE JANUARY 2, 1980, MEETING WAS
INDEED A FORMAL DISCUSSION AND THE UNION WAS DENIED THE OPPORTUNITY TO
BE REPRESENTED AT THE MEETING.
IN VIEW OF THE POSITIONS OF THE PARTIES, IT IS OBVIOUS THAT
RESOLUTION OF THE INSTANT UNFAIR LABOR PRACTICE COMPLAINT TURNS ON THE
NATURE OF THE JANUARY 2, 1980, MEETING, I.E. WHETHER SUCH MEETING WAS
(1) FORMAL AND (2) INVOLVED TERMS AND CONDITIONS OF EMPLOYMENT WITHIN
THE MEANING OF THE STATUTE. /18/ AS TO (1), I FIND THAT THE MEETING OF
JANUARY 2, 1980, WAS A FORMAL MEETING INASMUCH AS IT WAS, NOT IMPROMPTU,
HELD IN AN OFFICE AWAY FROM THE EMPLOYEE'S NORMAL PLACE OF EMPLOYMENT,
ATTENDED BY RESPONDENT'S CHIEF OF THE COMPUTER BRANCH AND DESIGNED TO,
IF POSSIBLE, REACH AGREEMENT OR RESOLUTION OF THE EMPLOYEE'S PENDING EEO
COMPLAINT.
WITH RESPECT TO THE 2ND ISSUE, I.E. WHETHER EEO MATTERS FALL WITHIN
THE DEFINITION OF "CONDITIONS OF EMPLOYMENT," THE FEDERAL LABOR
RELATIONS AUTHORITY HAS CONSIDERED THE QUESTION AND CONCLUDED THAT
MATTERS DEALING WITH DISCRIMINATION IN EMPLOYMENT ARE INCLUDED IN THE
DEFINITION OF "CONDITIONS OF EMPLOYMENT." AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, AND AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO, CASE 0-NG-40, 2 FLRA NO. 77,
(1/31/80).
HAVING CONCLUDED THAT THE MEETING WAS FORMAL AND INVOLVED CONDITIONS
OF EMPLOYMENT, THE SOLE ISSUE REMAINING FOR DETERMINATION IS WHETHER OR
NOT THE UNION WAS DEPRIVED OF ITS RIGHT TO ACTIVELY PARTICIPATE IN THE
MEETING. OR STATED ANOTHER WAY, DID MR. HILL'S ADMONISHMENT TO MS.
BIEHAALDER THAT SHE ALLOW MS. CALDERONE TO ANSWER THE QUESTION BEING
PROPOUNDED DEPRIVE THE UNION OF ITS STATUTORY RIGHTS? I FIND THAT UNDER
THE CIRCUMSTANCES PRESENTED HEREIN, IT DID NOT.
WHILE A UNION IS GIVEN A STATUTORY RIGHT TO PARTICIPATE IN FORMAL
DISCUSSIONS CONCERNING CONDITIONS OF EMPLOYMENT, SUCH RIGHT DOES NOT
EXTEND TO USURPATION OF THE PROCEDURES TO BE FOLLOWED. THE UNION MAY
ASK QUESTIONS AND PROPOSE RESOLUTIONS AND REMEDIES, IT MAY NOT, HOWEVER,
DICTATE ANSWERS OR TAKE CHARGE OF THE PROCEEDINGS. SIMILARLY, A UNION
IS NOT EXPECTED TO REMAIN SILENT AND NOT BE A PROPONENT OF A PARTICULAR
POSITION. HOWEVER, IN FORMAL DISCUSSIONS, ITS ACTIONS SHOULD BE
GOVERNED BY LOGIC AND RESPECT FOR ORDERLY PROCEDURES. TO THE EXTENT ITS
ACTIONS INTERFERE WITH MANAGEMENT'S ATTEMPT TO SOLICIT FACTS UNDERLYING
THE COMPLAINT WHICH IS THE BASIS FOR THE FORMAL MEETING, I FIND THAT THE
ADMONISHMENT TO CEASE SUCH ACTIVITY STANDING ALONE, FALLS SHORT OF
PRECLUDING THE UNION'S PARTICIPATION IN THE MEETING AND THEREBY
DEPRIVING IT OF A RIGHT PROVIDED BY THE STATUTE. CF. DEPT. OF TREASURY,
INTERNAL REVENUE SERVICE AND IRS CHICAGO DISTRICT, CHICAGO, ILLINOIS,
A/SLMR NO. 987. /19/
FINALLY, ALTHOUGH I DO NOT CONDONE RESPONDENT'S ACTION IN FAILING TO
GIVE FORMAL NOTICE TO THE UNION OF THE FORMAL DISCUSSION TO BE HELD ON
JANUARY 2, 1980, I CONCLUDE THAT, UNDER ALL THE CIRCUMSTANCES PRESENT
HEREIN, A SECTION 7116(A)(1), (5) AND (8) FINDING PREDICATED THEREON IS
NOT IN ORDER. IN REACHING THIS LATTER CONCLUSION IT IS NOTED THAT
ALTHOUGH THE UNION DID NOT RECEIVE FORMAL NOTICE OF THE MEETING IT DID
RECEIVE INDIRECT NOTICE AND DID ATTEND THE MEETING. /20/
WITH RESPECT TO THE SECOND ISSUE UNDERLYING THE INSTANT COMPLAINT,
I.E. UNILATERAL CESSATION OF DUES WITHHOLDING FROM THE WAGES OF UNIT
EMPLOYEES PROMOTED TO THE POSITION OF TEMPORARY SUPERVISOR, THE
RESPONDENT TAKES THE POSITION THAT ITS ACTIONS IN THIS REGARD WERE NOT
VIOLATIVE OF THE STATUTE SINCE THE STATUTE, PARTICULARLY SECTION
7115(B)(1), MAKES IT CLEAR THAT DUES ALLOTMENTS ARE TO CEASE WHEN THE
COLLECTIVE BARGAINING AGREEMENT IN EFFECT CEASES TO BE APPLICABLE TO THE
EMPLOYEE INVOLVED. RESPONDENT FURTHER ARGUES THAT THERE WAS NOT, IN ANY
EVENT, A CHANGE IN PAST PRACTICE AND THEREFORE IT WAS UNDER NO
OBLIGATION TO GIVE NOTICE AND BARGAIN OVER THE CESSATION OF DUES
WITHHOLDING. THE GENERAL COUNSEL TAKES THE POSITION THAT THERE WAS A
CHANGE IN PAST PRACTICE AND THAT THE STATUTE REQUIRES, IN ANY EVENT,
THAT THE DUES WITHHOLDING BE CONTINUED FOR EMPLOYEES PROMOTED TO THE
POSITION OF TEMPORARY SUPERVISOR.
CONTRARY TO THE POSITION OF THE RESPONDENT, I FIND THAT THE RECORD
SUPPORTS THE CONCLUSION THAT RESPONDENT DID MAKE A CHANGE IN PAST
PRACTICE WHEN IT MADE THE CESSATION OF DUES WITHHOLDING FROM TEMPORARY
SUPERVISORS MANDATORY. IN FACT RESPONDENT'S WITNESSES ACKNOWLEDGED THAT
PRIOR TO DECEMBER 1979, THERE HAD BEEN NO HARD AND FAST PRACTICE WITH
RESPECT TO THE CESSATION OF DUES WITHHOLDING FROM TEMPORARY SUPERVISORS
AND THAT THE POLICY CHANGED WHEN RESPONDENT'S SUPERVISORY PERSONNEL IN
THE PERSONNEL OFFICE DETERMINED THAT THE PAST PRACTICE OF NOT STOPPING
THE DUES WITHHOLDING FOR TEMPORARY SUPERVISORS WAS NOT IN ACCORD WITH
THE IRS MANUAL.
HAVING DETERMINED THAT THERE WAS A CHANGE IN PAST PRACTICE WITH
RESPECT TO DUES WITHHOLDING, THE NEXT ISSUE TO BE DECIDED IS WHETHER OR
NOT RESPONDENT WAS OBLIGATED TO BARGAIN OVER ITS DECISION, AS WELL AS
THE PROCEDURES TO BE UTILIZED AND THE IMPACT ON ADVERSELY AFFECTED
EMPLOYEES. WITH RESPECT TO THE DECISION ITSELF, I CANNOT AGREE WITH THE
GENERAL COUNSEL'S POSITION THAT RESPONDENT WAS NOT PERMITTED TO CEASE
MAKING THE DUES WITHHOLDING DEDUCTIONS WITHOUT FIRST BARGAINING ON THE
DECISION WITH THE UNION. WHILE IT IS TRUE THAT SECTION 7115(A) OF THE
STATUTE OBLIGATES AN AGENCY TO WITHHOLD DUES FROM AN EMPLOYEE'S WAGES
UPON RECEIPT OF A WRITTEN ASSIGNMENT FROM THE EMPLOYEE, IT IS ALSO TRUE
THAT SECTION 7115(B)(1) OBLIGATES AN AGENCY TO CEASE SUCH WITHHOLDING
WHEN THE EXISTING COLLECTIVE BARGAINING AGREEMENT IS NO LONGER
APPLICABLE TO THE EMPLOYEE INVOLVED. THUS, IT IS NOTED THAT THE
MANDATORY WORD "SHALL" IS USED IN BOTH SECTIONS OF THE STATUTE.
ACCORDINGLY, I FIND, CONTRARY TO THE CONTENTION OF THE GENERAL COUNSEL,
THAT RESPONDENT WAS INDEED OBLIGATED BY THE STATUTE TO CEASE WITHHOLDING
DUES FROM THE WAGES OF THE TEMPORARY SUPERVISORS SINCE THE CONTRACT
BECAME INAPPLICABLE TO THEM WHEN THEY ASSUMED THE POSITION OF TEMPORARY
SUPERVISOR. THE FACT THAT THE TEMPORARY SUPERVISORS HAD A REASONABLE
EXPECTANCY OF RETURNING TO THE UNIT DOES NOT ALTER THIS CONCLUSION. IN
THIS LATTER CONTEXT IT IS NOTED THAT UNDER THE EXECUTIVE ORDER THE
ASSISTANT SECRETARY CONSISTENTLY HELD THAT TEMPORARY SUPERVISORS ARE NOT
UNIT EMPLOYEES WHILE THEY ARE ENGAGED IN SUPERVISORY ACTIVITIES, AND
ACCORDINGLY ARE NOT ELIGIBLE TO VOTE IN REPRESENTATIONAL PROCEEDINGS.
DEPARTMENT OF INTERIOR, BUREAU OF LAND MANAGEMENT, LAKEVIEW, OREGON,
A/SLMR NO. 212; DEPARTMENT OF AGRICULTURE; U.S. FOREST SERVICE,
ANGELES NATIONAL FOREST, PASADENA, CALIF., A/SLMR NO. 339.
WHILE I HAVE FOUND ABOVE THAT RESPONDENT DID NOT VIOLATE THE STATUTE
WHEN IT UNILATERALLY DETERMINED IN ACCORDANCE WITH SECTION 7115(B)(1) OF
THE STATUTE TO CHANGE PAST PRACTICE AND CEASE WITHHOLDING DUES FROM UNIT
EMPLOYEES PROMOTED TO THE POSITION OF TEMPORARY SUPERVISOR, I FURTHER
FIND THAT RESPONDENT WAS, HOWEVER, UNDER AN OBLIGATION TO BARGAIN WITH
THE UNION CONCERNING THE PROCEDURES TO BE UTILIZED IN IMPLEMENTING ITS
DECISION TO CHANGE PAST PRACTICE AS WELL AS THE IMPACT OF SUCH DECISION
ON ADVERSELY AFFECTED EMPLOYEES. CF. INTERNAL REVENUE SERVICE, AUSTIN
SERVICE CENTER, AND NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER
72, 2 FLRA NO. 97. /21/
HAVING FOUND THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (5) OF
THE STATUTE BY VIRTUE OF ITS ACTIONS IN INSTITUTING CHANGES IN PAST
PRACTICE CONCERNING DUES WITHHOLDING WITHOUT FIRST ALLOWING THE UNION
THE OPPORTUNITY TO NEGOTIATE CONCERNING THE PROCEDURES TO BE UTILIZED IN
IMPLEMENTING THE CHANGES AND THEIR IMPACT ON ADVERSELY AFFECTED
EMPLOYEES, I RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER
DESIGNED TO EFFECTUATE THE PURPOSES OF THE STATUTE. /22/
ORDER
PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7118(A)(7)(A), AND SECTION
2423.29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R. 2423.29(B)(1), THE
AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE SERVICE, FRESNO
SERVICE CENTER, FRESNO, CALIFORNIA SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING ANY CHANGE IN DUES WITHHOLDING FROM UNIT EMPLOYEES
PROMOTED TO THE POSITION OF TEMPORARY SUPERVISOR IN THE FRESNO SERVICE
CENTER WITHOUT FIRST NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION,
AND AFFORDING THEM THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, CONCERNING THE PROCEDURES TO BE
OBSERVED IN IMPLEMENTING SUCH CHANGE, AND CONCERNING THE IMPACT SUCH
CHANGE WILL HAVE ON ADVERSELY AFFECTED EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION, MEET AND
CONFER TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, CONCERNING THE
PROCEDURES TO BE USED IN IMPLEMENTING THE CHANGE IN DUES WITHHOLDING
FROM UNIT EMPLOYEES PROMOTED TO THE POSITION OF TEMPORARY SUPERVISOR IN
THE FRESNO SERVICE CENTER AND CONCERNING THE IMPACT OF SUCH CHANGE ON
ADVERSELY AFFECTED EMPLOYEES.
(B) POST AT THE FRESNO SERVICE CENTER OF THE UNITED STATES INTERNAL
REVENUE SERVICE, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON
RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE DIRECTOR OF THE FRESNO
SERVICE CENTER, UNITED STATES INTERNAL REVENUE SERVICE, AND SHALL BE
POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES ARE
CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID
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 HEREBY FURTHER ORDERED THAT THE REMAINING ALLEGATIONS OF THE
COMPLAINT, WHICH HAVE BEEN FOUND SUPRA NOT TO BE VIOLATIVE OF THE
STATUTE, BE, AND HEREBY ARE, DISMISSED.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: SEPTEMBER 30, 1980
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 WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INSTITUTE ANY CHANGE IN DUES WITHHOLDING FOR UNIT
EMPLOYEES PROMOTED TO THE POSITION OF TEMPORARY SUPERVISOR IN THE
INTERNAL REVENUE SERVICE, FRESNO SERVICE CENTER, FRESNO, CALIFORNIA,
WITHOUT NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION AND AFFORDING
THEM AN OPPORTUNITY TO MEET AND CONFER TO THE EXTENT CONSONANT WITH LAW
AND REGULATIONS, ON THE PROCEDURES TO BE OBSERVED IN IMPLEMENTING SUCH
CHANGE, AND ON THE IMPACT SUCH CHANGE WILL HAVE ON ADVERSELY AFFECTED
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 THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL UPON REQUEST MEET AND NEGOTIATE WITH THE NATIONAL TREASURY
EMPLOYEES UNION, CONCERNING THE PROCEDURES TO BE UTILIZED IN
IMPLEMENTING THE CHANGE IN DUES WITHHOLDING FOR UNIT EMPLOYEES PROMOTED
TO THE POSITION OF TEMPORARY SUPERVISOR AND THE IMPACT OF SUCH CHANGE ON
ADVERSELY AFFECTED UNIT EMPLOYEES.
DATED: BY:
DIRECTOR, FRESNO SERVICE CENTER
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 QUESTION 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 IX,
WHOSE ADDRESS IS: 450 GOLDEN GATE AVENUE, ROOM 11408, P.O. BOX 36016,
SAN FRANCISCO, CA 94102.
--------------- FOOTNOTES: ---------------
/1/ SECTION 7115, ALLOTMENTS TO REPRESENTATIVES, PROVIDES IN
PERTINENT PART:
(A) IF AN AGENCY HAS RECEIVED FROM AN EMPLOYEE IN AN APPROPRIATE UNIT
A WRITTEN ASSIGNMENT
WHICH AUTHORIZED THE AGENCY TO DEDUCT FROM THE PAY OF THE EMPLOYEE
AMOUNTS FOR THE PAYMENT OF
REGULAR AND PERIODIC DUES OF THE EXCLUSIVE REPRESENTATIVE OF THE
UNIT, THE AGENCY SHALL HONOR
THE ASSIGNMENT AND MAKE AN APPROPRIATE ALLOTMENT PURSUANT TO THE
ASSIGNMENT. ANY SUCH
ALLOTMENT SHALL BE MADE AT NO COST TO THE EXCLUSIVE REPRESENTATIVE OR
THE EMPLOYEE. EXCEPT AS
PROVIDED UNDER SUBSECTION (B) OF THIS SECTION, ANY SUCH ASSIGNMENT
MAY NOT BE REVOKED FOR A
PERIOD OF 1 YEAR.
(B) AN ALLOTMENT UNDER SUBSECTION (A) OF THIS SECTION FOR THE
DEDUCTION OF DUES WITH
RESPECT TO ANY EMPLOYEE SHALL TERMINATE WHEN--
(1) THE AGREEMENT BETWEEN THE AGENCY AND THE EXCLUSIVE REPRESENTATIVE
INVOLVED CEASES TO BE
APPLICABLE TO THE EMPLOYEE; OR
(2) THE EMPLOYEE IS SUSPENDED OR EXPELLED FROM MEMBERSHIP IN THE
EXCLUSIVE REPRESENTATIVE.
/2/ SECTION 7112(B) PROVIDES IN PART:
(B) A UNIT SHALL NOT BE DETERMINED TO BE APPROPRIATE UNDER THIS
SECTION SOLELY ON THE BASIS
OF THE EXTENT TO WHICH EMPLOYEES IN THE PROPOSED UNIT HAVE ORGANIZED,
NOR SHALL A UNIT BE
DETERMINED TO BE APPROPRIATE IF IT INCLUDES --
(1) EXCEPT AS PROVIDED UNDER SECTION 7135(A)(2) OF THIS TITLE, ANY
MANAGEMENT OFFICIAL OR
SUPERVISOR(.)
/3/ SEE H.R. REP. NO. 1403, 95TH CONG., 2D SESS. 49(1978) WHERE, IN
DISCUSSING LANGUAGE IN H.R. 11280 WHICH WAS IDENTICAL TO THAT OF SECTION
7115(A) AND (B) OF THE STATUTE, THE HOUSE COMMITTEE ON POST OFFICE AND
CIVIL SERVICE NOTED:
SUBSECTION (B), HOWEVER, REQUIRES THAT AN ALLOTMENT TERMINATE WHEN:
(1) THE EXISTING
COLLECTIVE BARGAINING AGREEMENT BETWEEN THE AGENCY AND LABOR
ORGANIZATION CEASES TO BE
APPLICABLE TO THE EMPLOYEE (THE EMPLOYEE IS PROMOTED TO A MANAGEMENT
POSITION OR LEAVES THE
EMPLOY OF THE AGENCY); OR (2) THE EMPLOYEE IS SUSPENDED OR EXPELLED
FROM THE LABOR
ORGANIZATION.
/4/ THE GENERAL COUNSEL AND NTEU SOUGHT AS A REMEDY THAT NTEU BE MADE
WHOLE BY IRS FOR MONETARY LOSSES. INASMUCH AS THE TERMINATION OF DUES
WITHHOLDING WAS SPECIFICALLY REQUIRED BY THE STATUTE, THE AUTHORITY
FINDS THAT SUCH A REMEDY WOULD BE INAPPROPRIATE.
/5/ SECTION 7114(A)(2)(A) PROVIDES:
(2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT--
(A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE
AGENCY AND ONE OR MORE
EMPLOYEES IN THE UNIT OR THEIR REPRESENTATIVES CONCERNING ANY
GRIEVANCE OR ANY PERSONNEL
POLICY OR PRACTICES OR OTHER GENERAL CONDITION OF EMPLOYMENT(.)
/6/ IN THIS REGARD, CONGRESSMAN UDALL OF ARIZONA MADE THE FOLLOWING
STATEMENT ON THE HOUSE FLOOR DURING DEBATE OF THE "UDALL SUBSTITUTE"
WHICH BECAME THE FINAL HOUSE VERSION OF TITLE VII AND WHICH, AS RELEVANT
HEREIN, WAS ENACTED AND SIGNED INTO LAW.
THE REPORTED SECTION 7114 PROVIDES THE RIGHT OF REPRESENTATION FOR
ANY DISCUSSION BETWEEN
ONE OR MORE REPRESENTATIVES OF THE AGENCY AND ONE OR MORE UNIT
EMPLOYEES OR THEIR
REPRESENTATIVES CONCERNING ANY GRIEVANCE, PERSONNEL POLICY OR
PRACTICE, OR OTHER CONDITIONS OF
EMPLOYMENT. BY INSERTING THE WORD "GENERAL" BEFORE "CONDITIONS OF
EMPLOYMENT," THE SUBSTITUTE
LIMITS THE RIGHT OF REPRESENTATION TO THOSE FORMAL DISCUSSIONS (OTHER
THAN GRIEVANCE
DISCUSSIONS) WHICH CONCERN CONDITIONS OF EMPLOYMENT AFFECTING
EMPLOYEES IN THE UNIT GENERALLY.
124 CONG.REC. H9634 (DAILY ED. SEPT. 13, 1978).
/7/ SECTION 7103(A)(9) PROVIDES AS FOLLOWS:
(9) "GRIEVANCE" MEANS ANY COMPLAINT--
(A) BY ANY EMPLOYEE CONCERNING ANY MATTER RELATING TO THE EMPLOYMENT
OF THE EMPLOYEE;
(B) BY ANY LABOR ORGANIZATION CONCERNING ANY MATTER RELATING TO THE
EMPLOYMENT OF ANY
EMPLOYEE; OR
(C) BY ANY EMPLOYEE, LABOR ORGANIZATION, OR AGENCY CONCERNING--
(I) THE EFFECT OR INTERPRETATION, OR A CLAIM OF BREACH, OF A
COLLECTIVE BARGAINING
AGREEMENT; OR
(II) ANY CLAIMED VIOLATION, MISINTERPRETATION, OR MISAPPLICATION OF
ANY LAW, RULE, OR
REGULATION AFFECTING CONDITIONS OF EMPLOYMENT(.)
/8/ THE AUTHORITY'S CONCLUSION IS CONSISTENT WITH THE FOLLOWING
STATEMENT CONTAINED IN THE REPORT OF THE COMMITTEE ON POST OFFICE AND
CIVIL SERVICE REGARDING LANGUAGE CONTAINED IN H.R. 11280 WHICH WAS
IDENTICAL TO THAT CONTAINED IN SECTION 7103(A)(9) OF THE STATUTE:
SUBSECTION (A)(9) OF SECTION 7103 DEFINES "GRIEVANCE" TO MEAN ANY
COMPLAINT BY AN AGENCY,
LABOR ORGANIZATION, OR EMPLOYEE CONCERNING: (1) ANY MATTER RELATING
TO THE EMPLOYMENT OF SUCH
PERSON, WITH AN AGENCY; OR, (2) THE EFFECT OR INTERPRETATION, OR
CLAIM OF BREACH, OF A
COLLECTIVE BARGAINING AGREEMENT; OR, (3) ANY CLAIMED VIOLATION,
MISINTERPRETATION, OR
MISAPPLICATION OF ANY LAW, RULE, OR REGULATION AFFECTING CONDITIONS
OF EMPLOYMENT. IT SHOULD
BE NOTED THAT, ALTHOUGH THIS SUBSECTION IS VIRTUALLY ALL-INCLUSIVE IN
DEFINING
"GRIEVANCE," SECTION 7121 EXCLUDES CERTAIN GRIEVANCES FROM BEING
PROCESSED UNDER A NEGOTIATED
GRIEVANCE PROCEDURE, THEREBY LIMITING THE NET EFFECT OF THE TERM.
H.R. REP. NO. 1403, 95TH CONG.,2D SESS. 40(1978).
/9/ IRS ASSERTED THAT TO HOLD A MEETING SUCH AS HERE INVOLVED IS
"ALWAYS A FORMAL DISCUSSION," WHICH ENTITLES THE UNION AS A MATTER OF
COURSE TO AN OPPORTUNITY TO BE REPRESENTED, DIRECTLY CONFLICTS WITH
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION REGULATIONS AND THE PRIVACY ACT.
HOWEVER, THE AUTHORITY HOLDS ONLY THAT IN THE SPECIFIC CIRCUMSTANCES OF
THIS CASE, THE MEETING WAS A FORMAL DISCUSSION WITHIN THE MEANING OF
SECTION 7114(A)(2)(A) OF THE STATUTE.
/10/ NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA AND TIDEWATER
VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL, 6 FLRA NO. 22 (1980).
/11/ THE AUTHORITY FINDS IT UNNECESSARY TO PASS UPON THE JUDGE'S
STATEMENT AT N.8 OF HIS DECISION THAT A DIFFERENT CONCLUSION MIGHT HAVE
BEEN IN ORDER HAD THE MEETING INVOLVED FALLEN WITHIN THE AMBIT OF
SECTION 7114(A)(2)(B) OF THE STATUTE.
/12/ THE RECORD INDICATES THAT THE POSITION OF TEMPORARY SUPERVISOR
CARRIED ALL THE BENEFITS, WAGES AND RESPONSIBILITIES OF A PERMANENT
SUPERVISOR.
/13/ ACCORDING TO THE RECORD, A RESIDENT PROGRAMMER ANALYST HAD A
NON-COMPETITIVE PROMOTION POTENTIAL THROUGH A GRADE GS-12.
/14/ ONLY THE EEO COMPLAINT IS INVOLVED IN THE INSTANT CASE.
/15/ INASMUCH AS THIS CONFLICT IN TESTIMONY IS NOT CRUCIAL TO THE
RESOLUTION OF THE INSTANT COMPLAINT, I MAKE NO FINDINGS WITH REGARD
THERETO.
/16/ RESPONDENT, ADMITTEDLY, HAD NOT GIVEN MS. BIEHAALDER NOTICE OF
THE MEETING.
/17/ TO THE EXTENT RESPONDENT RELIES UPON SECTION 7114(A)(5)(A) AS A
DEFENSE TO ITS ACTIONS DESCRIBED IN THE FACTUAL PORTION OF THIS
DECISION, I FIND SUCH RELIANCE TO BE MISPLACED. SECTION 7114(A)(5)(A)
MERELY GIVES AN EMPLOYEE THE RIGHT, IF HE OR SHE SO DESIRES, TO HAVE HIS
OR HER OWN PERSONAL REPRESENTATIVE AT A GRIEVANCE OR APPEAL ACTION, IT
DOES NOT PRECLUDE A UNION FROM ATTENDING AS THE EXCLUSIVE REPRESENTATIVE
OF THE UNIT EMPLOYEES. TO REACH A CONTRARY CONCLUSION WOULD MAKE A
MOCKERY OUT OF SECTION 7114(A)(1) WHICH IMPOSES UPON THE UNION THE
OBLIGATION OF PROTECTING THE RIGHTS AND/OR INTERESTS OF ALL UNIT
EMPLOYEES. IN THE ABSENCE OF AN OPPORTUNITY TO ATTEND FORMAL
DISCUSSIONS CONCERNING CONDITIONS OF EMPLOYMENT, I QUESTION HOW A UNION
CAN FULFILL THE REPRESENTATIONAL RESPONSIBILITIES AND DUTIES IMPOSED
UPON IT BY THE STATUTE. ADDITIONALLY, I FIND, PARTICULARLY UNDER THE
FACTS PRESENTED HEREIN, I.E. WHERE THE KNOWN UNION STEWARD WAS INVITED
TO THE EEO MEETING BY THE ALLEGED DISCRIMINATEE, AN INDIVIDUAL'S RIGHT
TO PRIVACY DOES NOT PRECLUDE THE UNION'S APPEARANCE AT FORMAL HEARINGS
INVOLVING CONDITIONS OF EMPLOYMENT. CF., CELMINS V. U.S. DEPT. OF
TREASURY, INTERNAL REVENUE SERVICE, 457 D. SUPP. 13 (DIST. CT., D.C.
1977).
/18/ SECTION 7114(2)(A) OF THE STATUTE PROVIDES THAT "AN EXCLUSIVE
REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT (A) ANY FORMAL DISCUSSION BETWEEN ONE
OR MORE REPRESENTATIVES OF THE AGENCY AND ONE OR MORE EMPLOYEES IN THE
UNIT OR THEIR REPRESENTATIVES CONCERNING ANY GRIEVANCE OR ANY PERSONAL
POLICY OR PRACTICES OR OTHER CONDITIONS OF EMPLOYMENT."
/19/ HAD THE UNION'S ATTENDANCE AT THE MEETING BEEN PURSUANT TO
SECTION 7114(2)(B) A DIFFERENT CONCLUSION MIGHT WELL HAVE BEEN IN ORDER.
HOWEVER, SUCH WAS NOT THE CASE, NO DISCIPLINARY ACTION AGAINST MS.
CALDERONE WAS CONTEMPLATED AND THE UNION WAS SELECTED BY MS. CALDERONE
AS HER REPRESENTATIVE PURSUANT TO EEO PROCEDURES, A VIOLATION OF WHICH
IS NOT ACTIONABLE UNDER THE FSLMR STATUTE.
/20/ CF.U.S. DEPARTMENT OF THE ARMY, ABERDEEN PROVING GROUND,
MARYLAND AND IAM, LOCAL 2424, AFL-CIO, A/SLMR NO. 837, WHEREIN A SIMILAR
RESULT WAS REACHED UNDER EXECUTIVE ORDER 11491.
/21/ TO THE EXTENT THAT GENERAL COUNSEL AND CHARGING PARTY REQUEST
THAT RESPONDENT BE ORDERED TO MAKE THE UNION WHOLE FOR ANY LOSS IT MAY
HAVE SUSTAINED AS A RESULT OF THE UNILATERAL TERMINATION OF DUES
WITHHOLDING WITHOUT FIRST BARGAINING WITH THE UNION OVER THE IMPACT AND
IMPLEMENTATION OF ITS DECISION, SUFFICIENT TO SAY, I FIND NO CASE
PRECEDENT FOR SUCH ACTION. IN FACT BOTH THE ASSISTANT SECRETARY AND THE
FEDERAL LABOR RELATIONS AUTHORITY HAVE DECLINED TO GRANT SUCH A REMEDY.
UNITED STATES DEPT.OF DEFENSE, DEPT. OF THE NAVY, NAVAL AIR RESERVE
TRAINING UNIT, MEMPHIS, TENN., A/SLMR NO. 106; THE ADJUTANT GENERAL --
GEORGIA, GEORGIA NATIONAL GUARD, DEPARTMENT OF DEFENSE, ATLANTA,
GEORGIA, 2 FLRA NO. 92.
/22/ TO THE EXTENT THAT I HAVE FOUND, FOR REASONS SET FORTH ABOVE,
OTHER ALLEGATIONS OF THE COMPLAINT TO BE WITHOUT MERIT, I SHALL ORDER
THAT SUCH ALLEGATIONS BE DISMISSED.