11:0069(23)CA - IRS (District, Region, National Office Unit) and NTEU -- 1983 FLRAdec CA

 11 FLRA No. 23
 
 INTERNAL REVENUE SERVICE
 (DISTRICT, REGION, NATIONAL OFFICE UNIT)
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 3-CA-1458
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record in this case, including the
 parties' stipulation of facts, /1/ accompanying exhibits, and briefs
 submitted by the Respondent, the Charging Party, and the General
 Counsel, the Authority finds:
 
    The complaint alleges that the Respondent violated section
 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
 Relations Statute (the Statute) /2/ by dealing directly and individually
 with bargaining unit employees concerning terms and conditions of
 employment in May 1980, in derogation of the Charging Party's status as
 exclusive representative, and by denying the Charging Party the
 opportunity to be represented at such formal discussions within the
 meaning of section 7114(a)(1)(A).  /3/ The Respondent admits it acted as
 alleged, but takes the position that the interviews were not formal
 discussions because the purpose was to verify the questions which a
 sample of Examination Group Managers had completed.  Additionally, the
 Respondent contends that the task force interviews with bargaining unit
 employees were not "negotiations" and therefore did not undermine the
 exclusive bargaining representative.
 
    The National Treasury Employees Union (the Union) is the exclusive
 collective bargaining representative of four consolidated units of
 certain professional and nonprofessional employees of the Internal
 Revenue Service (the Respondent).  The Union and the Respondent are
 parties to a collective bargaining agreement which was effective at all
 times material herein.
 
    In May or June 1980, the Respondent conducted a study to analyze the
 duties performed by Examination Group Managers who are nonbargaining
 unit employees.  The purpose of this study was to review administrative
 or clerical duties performed by these managers which could detract from
 their primary function in evaluating, training and supervising their
 employees, and to determine whether or not any portion of the duties
 which were being performed by the Group Managers should be performed by
 Group Clerks who are bargaining unit employees.
 
    By letter dated March 27, 1980, the Respondent notified the Union
 that it intended to conduct a study analyzing the duties performed by
 Examination Group Managers and, after analyzing this information, that a
 task force would be sent into the field in or around May 1980 to
 interview bargaining unit employees.  By letter dated April 2, 1980, the
 Union notified the Respondent that it opposed any attempt by the
 Respondent to choose the employees to be interviewed, and requested that
 a Union representative be present at these meetings.  By letter dated
 May 13, 1980, the Union repeated its request that, since interviews of
 bargaining unit employees would be conducted by the task force, the
 Union had an absolute right to be present at such formal discussions.
 By letter dated June 16, 1980, the Respondent took the position that
 these interviews were not formal discussions within the meaning of the
 Statute and denied the Union's request to be present at such interviews.
 
    A task force, consisting of supervisory and managerial employees, was
 organized by the Respondent to conduct this study.  From June 8 to June
 22, 1980, two teams of task force members travelled to various districts
 and regions of the Internal Revenue Service and interviewed a number of
 individuals, including approximately 31 bargaining unit employees (Group
 Clerks).  The employees interviewed were chosen by district managers
 either ahead of time or upon arrival of the task force members.  Prior
 to arriving in the districts, the task force members did not know who
 they would be interviewing.  In those cases where employees to be
 interviewed were out on annual or sick leave on the day of the
 interview, the district managers chose different employees to substitute
 for the employees who were absent.  No task force member interviewed any
 employee from his own district.
 
    At the beginning of these interviews, bargaining unit employees were
 informed that information obtained would not be used for evaluation
 purposes.  No employee interviewed requested the presence of a Union
 representative.  During the interviews, the employees were asked
 approximately 12 questions which had been prepared in advance by members
 of the task force.  They were asked what type of group they were in;
 how much time they had in grade;  how much training they had received;
 how much time they spent on AIMS (Information Computer System);  who
 provided them with assistance on AIMS problems;  if they had a choice,
 whether they would spend more or less time on AIMS;  what their
 functions and major responsibilities were and what types of contact they
 had with the Centralized Service Branch (which maintains the AIMS
 system);  when they consulted with their group managers and what types
 of problems or concerns they took to their group managers;  and whether
 or not they had enough time in which to perform their duties, and
 whether or not they were performing duties which, in their opinion,
 should be performed by someone else.  These questions were asked with a
 view toward a possible reassignment of work from Group Managers to Group
 Clerks and the possible creation of new AIMS coordinator positions to
 perform AIMS duties and responsibilities.
 
    As a result of this study, the task force prepared a report making
 specific findings and recommendations.  The specific findings of the
 task force were:
 
    a.  Group managers spend an inordinate amount of time on AIMS
 functions,
 
       most of which are clerical.
 
    b.  The reaction to an AIMS coordinator position was positive.
 
    c.  Group managers who have lost access to an AIMS terminal maintain
 that
 
       their group effectiveness has suffered.
 
    d.  Group clerks do not receive adequate training. Recommendations of
 the task force included the following:
 
    a.  AIMS coordinator positions should be established in all
 Examination
 
       Divisions.
 
    b.  Additional AIMS training should be developed for group
 secretaries.
 
    c.  All groups of posts-of-duty should have access to an AIMS
 terminal. No action has been taken by the Respondent as a result of the
 foregoing recommendations.
 
    The General Counsel contends that, by the foregoing conduct, the
 Respondent failed to comply with section 7114(a)(2)(A) and thereby
 violated section 7116(a)(1) and (8) of the Statute in denying the Union
 the opportunity to be represented at formal discussions between
 management representatives and bargaining unit employees.  In this
 regard, the General Counsel argues that one of the purposes of the
 interviews was to determine whether a portion of the clerical and
 administrative duties being performed by Group Managers could be
 performed by Group Clerks, and therefore involved a possible
 reassignment of duties;  that such solicitation of unit employees'
 opinions also involved a discussion concerning the creation of new
 positions and the need for additional training, matters clearly covered
 in Article 12 of the parties' collective bargaining agreement;  /4/ and
 that these direct communications with unit employees involved general
 working conditions and therefore constituted formal discussions with
 employees at which the Union was entitled to be represented.  The
 General Counsel also contends that the Respondent violated section
 7116(a)(1) and (5) of the Statute when it bypassed the Union and dealt
 directly with unit employees concerning the foregoing matters.
 
    The Respondent contends that the interviews were not formal
 discussions within the meaning of section 7114(a)(2)(A) of the Statute
 because it did not intend for the meetings to be formal and the content
 and circumstances surrounding the meetings did not render them formal
 discussions.  In this connection, the Respondent argues that the purpose
 of the study focused on the role of Examination Group Managers, who are
 nonbargaining unit employees, in order to analyze the duties performed
 by them and to determine whether the information obtained from
 interviews with management officials was complete and accurate.  The
 Respondent further argues that the questions which the Group Clerks were
 asked did not amount to an attempt to bypass the Union and bargain
 directly with the employees, did not urge the employees to put pressure
 on their Union representatives to take a certain course of action, and
 did not threaten or promise benefits to the employees.  Rather, the
 Respondent contends, this type of study is one of management's
 "unfettered rights" and did not involve general working conditions.
 
    In the circumstances of this case, including the nature of the
 individual discussions, the subject matter discussed, and the impact
 upon bargaining unit employees, the Authority finds the interviews
 herein to be formal discussions concerning general conditions of
 employment within the meaning of section 7114(a)(2)(A) of the Statute.
 /5/ Thus, the interviews were initiated by management;  were conducted
 by management officials with a number of unit employees;  required
 attendance by those employees selected;  followed a formal agenda;  and
 centered around subject matter involving the employees' general
 conditions of employment.  Accordingly, it follows that the Union was
 entitled to be present at such discussions, and that the Respondent
 violated section 7116(a)(1) and (8) of the Statute by denying the
 Union's request to be present.  /6/
 
    However, the Authority finds that the Respondent did not bypass the
 Union by meeting directly with unit employees and therefore did not also
 violate section 7116(a)(5) of the Statute.  The interviews were held
 solely for the purpose of determining whether certain information
 obtained from its group managers was accurate and obtaining other
 factual information.  The interviews in no way undermined the status of
 the Union as the exclusive representative of the employees.  The
 Authority therefore finds that the General Counsel has failed to
 establish an unlawful bypass in violation of section 7116(a)(1) and (5)
 of the Statute.  /7/ Accordingly, that allegation of the complaint shall
 be, and hereby is, dismissed.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, the
 Authority hereby orders that the Internal Revenue Service (District,
 Region, National Office Unit), shall:
 
    1.  Cease and desist from:
 
    (a) Failing or refusing to give the employees' exclusive
 representative, the National Treasury Employees Union, the opportunity
 to be represented at formal discussions with bargaining unit employees
 at which personnel policies and practices or other general conditions of
 employment are discussed.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing any employee in the exercise of 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) Give the National Treasury Employees Union the opportunity to be
 represented at formal discussions with bargaining unit employees at
 which personnel policies and practices or other general conditions of
 employment are discussed.
 
    (b) Post at all facilities of the Internal Revenue Service (District,
 Region, National Office Unit), 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 Commissioner or his designee and
 shall be posted and maintained for 60 consecutive days thereafter, in
 conspicuous places, including all bulletin boards and other 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.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region III, 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.  
 
 Issued, Washington, D.C., January 20, 1983
 
                                       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 fail or refuse to give the employees'exclusive
 representative, the National Treasury Employees Union, the opportunity
 to be represented at formal discussions with bargaining unit employees
 at which personnel policies and practices or other general conditions of
 employment are discussed.
 
    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 give the National Treasury Employees Union the opportunity to
 be represented at formal discussions with bargaining unit employees at
 which personnel policies and practices or other general conditions of
 employment are discussed.
                                       (Activity)
 
 Dated:  . . .  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 questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region III, Federal Labor Relations Authority, whose address
 is:  P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone
 number is:  (202) 653-8452.
 
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ On October 18, 1982, the General Counsel filed a motion to
 withdraw the stipulation entered into by all parties and previously
 transferred to the Authority, on the sole ground that Department of
 Health and Human Services, Social Security Administration, Bureau of
 Field Operations, San Francisco, California, 10 FLRA No. 24 (1982) is
 dispositive of this case.  The Charging Party thereafter filed an
 opposition.  The Authority concludes that, at this state of the
 proceeding, the purposes and policies of the Statute would be best
 effectuated by issuing a decision herein.  Accordingly, the General
 Counsel's motion to withdraw the stipulation is denied.
 
 
    /2/ 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;
 
                                .  .  .  .
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
 
    /3/ Sec. 7114.  Representation rights and duties
 
                                .  .  .  .
 
    (a)(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(.)
 
 
    /4/ In regard to training, Article 12 of the parties' collective
 bargaining agreement provides in part:
 
          Section 1
 
          The Employer and the Union agree that the training and
       development of employees within the Unit is a matter of
       significant importance.  In conjunction with this goal, the
       Employer will, as funds permit, make available to all employees
       the training he deems necessary for the performance of the
       employee's presently assigned duties or proposed assignment.  The
       Employer agrees to encourage and assist employees in planning and
       following a plan of self development.
 
 
    /5/ With regard to some of the factors considered by the Authority in
 determining whether a meeting constitutes a formal discussion, see
 Department of Health and Human Services, Social Security Administration,
 Bureau of Field Operations, San Francisco, California, 10 FLRA No. 24
 (1982).  See also Department of Health and Human Services, Social
 Security Administration, Bureau of Field Operations, San Francisco
 Region, 10 FLRA No. 25 (1982).
 
 
    /6/ See Department of Health, Education and Welfare, Region IV,
 Atlanta, Georgia and Department of Health and Human Services, Region IV,
 Atlanta, Georgia, 5 FLRA No. 58 (1981).  See also Norfolk Naval
 Shipyard, Portsmouth, Virginia, 6 FLRA No. 22 (1981);  Internal Revenue
 Service, Washington, D.C., 4 FLRA No. 68 (1980).
 
 
    /7/ See Kaiserslautern American High School, Department of Defense
 Dependents Schools, Germany North Region, 9 FLRA No. 28 (1982).