[ v10 p415 ]
10:0415(71)CA
The decision of the Authority follows:
10 FLRA No. 71
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE CENTER
ATLANTA, GEORGIA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 4-CA-590
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in an unfair labor practice under section 7116(a)(1) of the Federal
Service Labor-Management Relations Statute (the Statute), and
recommending that the case be dismissed in its entirety. No exceptions
were filed to the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of 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, and noting particularly the
absence of exceptions, the Authority hereby adopts the Judge's findings,
conclusions, and recommendations. /1A/
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 4-CA-590 be, and
it hereby is, dismissed.
Issued, Washington, D.C., October 29, 1982
Ronald W. Haughton, Chairman
Henry B. Frazier III Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Harry Mason, Esq.
For the Respondent
Regina M. Kane, Esq.
Brenda Green, Esq.
For the General Counsel
Federal Labor Relations Authority
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. (hereinafter referred to as the Statute) and the Rules and
Regulations of the Federal Labor Relations Authority, 5 C.F.R.Chapter
XIV, Sec. 2410 et seq.
Pursuant to a charge filed on September 9, 1980 by the National
Treasury Employees Union (hereinafter called NTEU and Union) against the
Department of the Treasury, Internal Revenue Service Center, Atlanta,
Georgia (hereinafter called Respondent and IRS); a First Amended Charge
filed on September 23, 1980; and a Second Amended Charge filed on
October 3, 1980, the General Counsel of the Federal Labor Relations
Authority by the Regional Director for Region 4 issued a Complaint and
Notice of Hearing on October 20, 1980 alleging that Respondent violated
Section 7116(a)(1) of the Statute by allegedly advising employee Rose
Marie DeReimer, on three occasions, not to seek assistance from the
Union without first consulting with Respondent. IRS filed an Answer on
November 5, 1980 admitting certain factual allegations and denying the
legal conclusions.
A hearing in this matter was conducted before the undersigned in
Atlanta, Georgia. The General Counsel of the Federal Labor Relations
Authority and the IRS were represented and afforded full opportunity to
be heard, to examine and cross-examine witnesses, to introduce evidence
and to argue orally. Briefs were filed and have been fully considered.
Based upon the entire record in this matter, my observation of the
witnesses demeanor, and upon my evaluation of the evidence, I make the
following:
Findings of Fact
NTEU is the exclusive collective bargaining representative for a unit
consisting of, inter alia, Respondent's professional and
non-professional employees at IRS' Atlanta Service Center.
Employee DeReimer was a tax examiner in the Respondent's Collection
Branch /1/ for two years, until June 29, 1980, when she was reassigned
laterally to the Quality Review Staff with the encouragement of Quality
Review Staff Manager Carol Thompson. DeReimer's duties in the Quality
Review Staff consisted of identifying technical errors of tax examiners
in the Collection Branch and "flagging" such errors. If a Collection
Branch Manager disagreed with DeReimer's findings of error, the
Collection Branch Manager took the matter up with DeReimer's Manager.
In early July 1980, Manager Thompson advised the Quality Review Staff
tax examiners, including Employee DeReimer, that Sue Harrington, then in
IRS' management training program, would be acting as Quality Review
Staff Manager while Manager Thompson was detailed out of the unit for
six weeks. DeReimer became increasingly dissatisfied with her
assignment to the Quality Review Staff. She had some differences with
Acting Manager Harrington over the work DeReimer felt she was not
receiving adequate training and she objected because after she
identified errors in the matters she was reviewing, Harrington would
delete them.
The Union Shop Steward for the Quality Review Staff was Calvin Adams,
the Union Steward for the Examination Branch. Regina Smith was the
Union Shop Steward for the Collection Branch and was physically located
near DeReimer's desk.
In late July DeReimer began to consider the prospect of seeking a
lateral reassignment to the Collection Branch and informally discussed
this matter with Union Steward Smith. A. August 2, 1980 Meeting
On August 2, 1980 Acting Manager Harrington asked Employee DeReimer
to join her in the conference room of the Compliance Division. During
the course of meeting DeReimer and Harrington discussed DeReimer's
dissatisfaction with her assignment to the Quality Review Staff, her
feeling she wasn't receiving sufficient training and other problems she
was having with respect to her work performance. DeReimer advised
Harrington that she was so unhappy that she was considering seeking
reassignment out of Quality Review to her prior position in the
Collection Branch and had been discussing this matter with her friend
Regina Smith. Harrington advised DeReimer that before she did anything
final or made any final decisions she shall give her present job a try
for a little longer and wait a few weeks for Carol Thompson to return.
Harrington encouraged DeReimer to discuss the problems with Thompson
because they might be able to work something out.
I have credited Harrington's version of this meeting rather than
DeReimer's. Harrington appeared a more credible witness and her version
seemed more reasonable and consistent with the other facts and
circumstances. Thus, DeReimer's testimony that she told Harrington that
she, DeReimer, had been talking to Regina Smith, Union Steward, about
transferring back to the Collection Branch; that Harrington replied
that DeReimer should not go to the Union first but should talk to the
IRS first about her problems; that there are some aspects that
management could handle; and that the Union should not get involved, is
discredited. Regina Smith, in addition to being a Shop Steward, is a
personal friend of DeReimer's and DeReimer's testimony indicates that
she went to talk to Smith, not because she was a Union Shop Steward /2/
, but because DeReimer and Smith were personal friends and Smith had
extensive knowledge concerning procedures for transferring. In this
regard, it is noted that Harrington had just transferred to the I-95
Annex, was informed that Calvin Adams was the Union Steward for the
Quality Review Staff, was, at that time, unaware that Smith was a Union
Steward, and had seen Smith and DeReimer, presumably as friends,
lunching and talking together.
In light of all of the foregoing, in addition to the demeanor of the
witnesses, I credit Harrington's version of the August 2 meeting. B.
August 11, 1980 Meeting
Several subsequent meetings occurred between Harrington and DeReimer
during which Harrington pointed out what she felt were shortcomings in
DeReimer's work performance.
On August 11, 1980, at a meeting, Harrington advised DeReimer that if
DeReimer did not improve on some of her alleged shortcoming and if the
problems persisted Harrington would have to start documenting DeReimer's
shortcomings. DeReimer was so upset by the conversation that without
advising Harrington, DeReimer left her unit to talk to Regina Smith, who
advised DeReimer to go to the nurse's station. The nurse advised
Harrington that DeReimer was in the nurse's station. DeReimer then
returned to her station and advised Harrington that she, DeReimer, was
going to see Union Steward Calvin Adams. /3/ C. August 13 Meeting and
the August 15 Memorandum:
On August 13 DeReimer, at Adams' request, reduced to writing her
version of the August 2 meeting. On that same day, at Adams' request,
DeReimer, Thompson, and Adams met in the Conference Room to discuss
Thompson's work expectations of DeReimer. Thompson read verbatim
portions of an eight-item Expectation Memorandum, elaborating on each
item. The Fifth Item states:
5. If you have a problem other than work, let me know at once.
I may not need to know the problem and I may not be able to
solve the problem, but I do expect you to inform me that you do
have a problem and that you are going to talk to either the Union
steward or the nurse. Problems that affect your performance
concern me as a manager.
DeReimer testified that Harrington stated that if DeReimer "had a
personal problem . . . I should confront her first and that she
necessarily didn't want to know what the problem was but if I had one,
let her know before I went to the Union or went to the nurse or went out
of the unit . . . "
On August 14 DeReimer was asked to sign the Expectation Memorandum
dated that day and a copy of that Memorandum was placed in DeReimer's 7B
File. /4/
Discussion and Conclusions
The credited version of the August 2, 1980 meeting does not contain
any anti-Union comments by Harrington nor does it contain any expression
that DeReimer should limit her contacts with Union or hesitate to seek
Union assistance.
The language of the August 13, 1980 meeting and the Expectation
Memorandum, which is alleged to be unlawful, in effect merely requires
DeReimer to advise her superior when she is leaving the work area.
DeReimer was neither forbidden to go to the Union nor was she
discouraged from going to the Union; rather she was instructed that
when leaving the unit area, whether it be to go to the Union or the
nurse, she was to go advise her superior. Such a requirement is merely
an attempt by management to keep track of the location of employees
during working hours. Such a limitation, absent additional coercion or
interference, can hardly be found to be violative of Section 7116(a)(1)
of the Statute. Cf. Oklahoma City Air Logistics Center, 2 FLRA No. 13
(1979).
In light of the foregoing it is concluded that Respondent did not
violate Section 7116(a)(1) of the Statute. Accordingly, I recommend the
Authority adopt the following:
ORDER
It is hereby Ordered that the complaint in Case No. 4-CA-590 be, and
hereby is, dismissed.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: July 1, 1981
Washington, DC
/1A/ See Department of Defense, Department of the Air Force, Warner
Robins Air Logistics Center, Robins Air Force Base, Georgia, 7 FLRA No.
104 (1982); Army and Air Force Exchange Service (AAFES), Rocky Mountain
Area Exchange No. 4125, Fort Carson, Colorado, 8 FLRA No. 94 (1982).
--------------- FOOTNOTES$ ---------------
/1/ Respondent's Compliance Division is composed of three branches,
the Examination Branch, the Collection Branch, and Quality Review Staff.
The incidents in this case took place at Respondent's location at the
I-85 Annex.
/2/ At this time DeReimer was confused and was unaware that Calvin
Adams was her Shop Steward. She apparently thought that Regina Smith,
who had been her Shop Steward when DeReimer was in Collections, was
still her Shop Steward.
/3/ Smith advised DeReimer that her Shop Steward was Calvin Adams.
/4/ Apparently a personnel file.