[ v19 p979 ]
19:0979(115)CA
The decision of the Authority follows:
19 FLRA No. 115
UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE,
DALLAS DISTRICT
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION AND NTEU CHAPTER 46
Charging Party
Case No. 6-CA-1056
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding finding that the Respondent had not engaged in
certain unfair labor practices alleged in the complaint and recommending
dismissal of that portion of the complaint. The Judge further found
that the Respondent had engaged in certain other unfair labor practices
alleged in the complaint and recommended that it be ordered to cease and
desist therefrom and take certain affirmative action. Thereafter, the
Respondent filed exceptions to the Judge's Decision and a supporting
brief, and the Charging Party filed a response to the Respondent's
exceptions. /1/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order only to the extent
consistent herewith.
The Authority finds, in agreement with the Judge, that in the
circumstances of this case the Respondent violated section 7116(a)(1)
and (5) of the Statute /2/ by failing to negotiate over the Union's
proposals regarding the procedures to be observed and appropriate
arrangements for employees adversely affected by an office move prior to
the relocation. The Respondent refused to bargain over the proposals
submitted by the Union prior to the move and within the time frame
requested by the Respondent. Although the office move occurred only two
days after the Respondent received the Union's proposals, the Respondent
was still required to bargain concerning the procedures to be observed
and appropriate arrangements for employees adversely affected by the
move if such proposals otherwise are consistent with law and regulation.
See American Federation of State, County and Municipal Employees,
AFL-CIO, Local 2477 and Library of Congress, Washington, D.C., 7 FLRA
578 (1982), enforced sub nom. Library of Congress v. Federal Labor
Relations Authority, 699 F.2d 1280 (D.C. Cir. 1983); and Social
Security Administration, Office of Hearings and Appeals, Region II, New
York, New York, 19 FLRA No. 47 (1985). Accordingly, the question is
whether the proposals submitted by the Union were outside the duty to
bargain as asserted by the Respondent.
The Authority adopts the Judge's conclusion, for the reasons he
stated, that Union Proposal No. 4 is nonnegotiable, and that Proposal
Nos. 2, 3 and 8 are negotiable. /3/ Contrary to the Judge, however, the
Authority finds that Proposal Nos. 1, 5 and 6 are outside the duty to
bargain, and that Proposal No. 7 is negotiable. Thus, the Authority
finds that Proposal Nos. 1 and 5, which deal with the providing of
"adequate office equipment to enable employees to perform tasks as
assigned," and the granting of administrative leave if an adequate work
surface is not provided, concern the technology, methods and means of
performing the Respondent's work within the meaning of section
7106(b)(1) of the Statute and therefore are negotiable only at the
election of the Respondent. /4/ These proposals would require
negotiations concerning which equipment is necessary to perform tasks as
assigned and constitutes part of the technical method used by the
Respondent for accomplishing or furthering the performance of its work.
See Library of Congress, 7 FLRA 578, 583-584. The Authority also finds
nonnegotiable Proposal No. 6, which would require a substantial barrier
or device in front of the office to restrain the general public from
entering the area to obtain tax forms and information, as such proposal
interferes with the Respondent's right to determine its internal
security practices, a reserved management right under section 7106(a)(1)
of the Statute. /5/ See National Treasury Employees Union and Internal
Revenue Service, 7 FLRA 275, 275-277 (1981).
Finally, the Authority finds that Proposal No. 7, which would require
management to request safety inspections of the new building by OSHA, is
negotiable. The Respondent has not alleged that this proposal is
inconsistent with law, rule or regulation, nor is any inconsistency
apparent. Although the Respondent contends that the Union waived its
bargaining rights to negotiate matters concerning safety and health
matters, the Authority notes that while the parties' negotiated
agreement of 1977 provided for a Safety Advisory Committee to consider
"work-related safety matters," regulations governing OSHA's authority
covering the Federal workplace were not established until 1980.
Therefore the provisions of the 1977 negotiated agreement could not have
been established to replace the function of OSHA, and the Union did not
thereby waive its bargaining right to request that OSHA perform a safety
inspection of the parties' new building location.
In view of the above findings that certain of the proposals submitted
by the Union prior to the office relocation were within the duty to
bargain, to that extent the Respondent's defense to its refusal to
bargain cannot be sustained. Therefore, the Respondent's failure or
refusal to bargain over the procedures to be observed and appropriate
arrangements for employees adversely affected by the relocation
constituted a violation of section 7116(a)(1) and (5) of the Statute.
ORDER /6/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority hereby orders that the
United States Department of the Treasury, Internal Revenue Service,
Dallas District, shall:
1. Cease and desist from:
(a) Failing or refusing to meet and negotiate, consonant with
obligations imposed by the Statute, with the National Treasury Employees
Union and NTEU Chapter 46, the employees' exclusive representative, over
proposals it submitted regarding the procedures to be observed and
appropriate arrangements for employees adversely affected by the
relocation of its Mid-Cities Office from Arlington, Texas to Euless,
Texas.
(b) Instituting any future change in the location of the Euless,
Texas worksite without first notifying the National Treasury Employees
Union and NTEU Chapter 46 of the change and affording the exclusive
representative an opportunity to negotiate, consonant with obligations
imposed by the Statute, concerning the procedures to be observed in such
relocation and appropriate arrangements for employees adversely affected
by such action.
(c) In any like or related manner interfering with, restraining or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Upon request, negotiate in good faith with the National Treasury
Employees Union and NTEU Chapter 46, the employees' exclusive
representative, as to the procedures to be observed and the appropriate
arrangements for employees adversely affected by the relocation of the
Mid-Cities Office from Arlington, Texas to Euless, Texas, including, but
not limited to, those proposals found to be negotiable by the Authority.
(b) Notify the National Treasury Employees Union and NTEU Chapter 46,
the employees' exclusive representative, with regard to any future
relocation of the Euless, Texas worksite, and afford it the opportunity
to negotiate, consonant with obligations imposed by the Statute, over
the procedures to be observed in such relocation and appropriate
arrangements for employees adversely affected by such action.
(c) Post at its Euless, Texas worksite 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 District Director,
Internal Revenue Service, Dallas District, or a 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
ensure that such Notices are not altered, defaced, or covered by any
other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, 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 alleging a
separate section 7116(a)(1) and (8) violation relating to the
Respondent's refusal to provide information pertaining to the relocation
be, and it hereby is, dismissed.
Issued, Washington, D.C., August 23, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., 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 negotiate, consonant with obligations
imposed by the Statute, with the National Treasury Employees Union and
NTEU Chapter 46, our employees' exclusive representative, over proposals
it submitted regarding the procedures to be observed and appropriate
arrangements for employees adversely affected by the relocation of our
Mid-Cities Office from Arlington, Texas to Euless, Texas. WE WILL NOT
institute any future change in the location of the Euless, Texas
worksite without first notifying the National Treasury Employees Union
and NTEU Chapter 46 of the change and affording the exclusive
representative an opportunity to negotiate, consonant with obligations
imposed by the Statute, concerning the procedures to be observed in such
relocation and appropriate arrangements for employees adversely affected
by such action. 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, negotiate in good faith with the National Treasury
Employees Union and NTEU Chapter 46, our employees' exclusive
representative, as to the procedures to be observed and the appropriate
arrangements for employees adversely affected by the relocation of the
Mid-Cities Office from Arlington, Texas to Euless, Texas, including, but
not limited to, those proposals found to be negotiable by the Authority.
WE WILL notify the National Treasury Employees Union and NTEU Chapter
46, our employees' exclusive representative, with regard to any future
relocation of the Euless, Texas worksite and afford it the opportunity
to negotiate, consonant with obligations imposed by the Statute,
concerning the procedures to be observed in such relocation and
appropriate arrangements for employees adversely affected by such
action.
(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 VI,
Federal Labor Relations Authority, whose address is: Bryan & Ervay
Street, Room 450, P.O. Box 2640, Dallas, Texas, and whose telephone
number is: (214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 6-CA-1056
William F. Burbach, Esquire
On Brief: W. B. Riley, Esquire
Gary A. Anderson, Esquire
For the Respondent
Sara M. Simpson, Esquire
On Brief: Henry H. Robinson, Esquire
For the Charging Party
James E. Dumerer, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
et seq., /7/ and the Final Rules and Regulations issued thereunder 5
C.F.R. 2423.1, et seq., was initiated by a charge filed on March 16,
1981 (G.C. Exh. 1(a)). The Complaint issued on July 21, 1981 (G.C. Exh.
1(d)) and a hearing was scheduled for October 27, 1981; on October 6,
1981, an Order correcting date, time and place of hearing issued (G.C.
Exh. 1(h)), which, in actuality, rescheduled the hearing for November
17, 1981; on October 28, 1981, an Order was entered cancelling the
hearing scheduled for November 17 (G.C. Exh. 1(j)); on November 18,
1981, an Order was entered rescheduling the hearing for December 14,
1981 (G.C. Exh. 1(1)); on December 3, 1981, an Order issued again
rescheduling the hearing for January 19, 1982, at a place to be
determined (G.C. Exh. 1(n)); and on January 6, 1982, an Order issued
setting place of hearing (G.C. Exh. 1(p)), pursuant to which a hearing
was duly held on January 19, 1982, in Dallas, Texas, before the
undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues involved, and were afforded
opportunity to present oral argument. At the close of the hearing,
February 19, 1982, was fixed as the date for mailing post-hearing briefs
which time was subsequently extended for good cause shown to March 19,
1982. Counsel for General Counsel had presented oral argument and did
not file a post-hearing brief; but Counsel for the Charging Party,
National Treasury Employees Union and Chapter 46 (hereinafter, referred
to as "Union") and the Respondent each timely mailed an excellent brief,
received on, or before March 22, 1982, which have been carefully
considered, together with the oral argument. Upon the basis of the
entire record, including my observation of the witnesses and their
demeanor, I make the following findings and conclusions:
Allegations of the Complaint
Paragraph 8 of the Complaint alleged:
"On or about December 4, 1980, Respondent unilaterally changed
existing terms and conditions of employment by relocating
employees from its Arlington, Texas (mid-cities) office to Euless,
Texas without furnishing proper notice to Chapter 46 and affording
Chapter 46 an opportunity to bargain concerning the impact and
implementation of the relocation."
Paragraph 12(a) of the Complaint alleged that the conduct described in
Paragraph 8 violated Secs. 16(a)(1) and (5) of the Statute.
Paragraphs 9, 10 and 11 of the Complaint alleged:
"Since on or about November 3, 1980, Chapter 46 has requested
that Respondent furnish it necessary and relevant information
consisting of certain IRS, GSA and other agency directives,
regulations and information that was relied on for the decision to
relocate. (Par. 9).
"The information requested in paragraph 9 above is normally
maintained by the agency in the regular course of business; is
reasonably available and is necessary for full and proper
discussion, understanding and negotiation of subjects within scope
of collective bargaining; and does not constitute guidance,
advice, counsel or training for management officials or
supervisors relating to collective bargaining. (Par. 10).
"(a) Since on or about November 3, 1980, and at all times
thereafter, Respondent has refused and continues to refuse to
bargain in good faith . . . by failing and refusing to furnish . .
. the . . . information . . . described in paragraph 9 above.
"(b) Since on or about November 3, 1980, Respondent has failed
and refused and continues to fail and refuse to comply with the
provisions of 5 USC 7114(b)(4) by refusing to furnish . . . the
requested information described in paragraph 9 above." (Par. 11(a)
and 11(b)).
Paragraph 12(a) of the Complaint alleged that the conduct described in
Paragraph 11(a) violated Secs. 16(a)(1) and (5) of the Statute and
Paragraph 12(b) of the Complaint alleged that the conduct described in
Paragraph 11(b) of the Complaint violated Secs. 16(a)(1) and (8) of the
Statute.
Findings and Discussion
1. Respondent's Mid-Cities office had been located in the Parkway
Central Plaza Building, Arlington, Texas. In April, 1980, the General
Services Administration (hereinafter "GSA"), lessee, advised the lessor,
Parkway Central, of certain fire code violations. The lessor refused to
remedy the fire code violations and GSA advised Respondent in April,
1980, that it would have to move. By April 21, 1980, a market survey of
some potential sites, including Parkway Central, had been completed
(Res. Exh. 3). Subsequently, another site, Metro Center, which did not
appear on the market survey, was added and, as the low bidder, Metro
Center was tentatively awarded the lease in August, 1980; however, upon
re-inspection, fire code violations were found and the Metro Center bid
was rejected by GSA in late August, 1980. In the meantime, GSA's lease
for Respondent's Arlington Space had expired, on June 30, 1980, and GSA
negotiated for continued occupancy on a month-to-month basis.
2. Upon rejection of the Metro Center bid, GSA began the bidding
process anew and the present space, located in the Fountain View
Building (corner of Highways 183 and 157) in Euless, Texas (hereinafter
referred to as "Euless"), was tentatively selected shortly after
rejection of the Metro Center bid; however, because of the lack of
funds in the expiring fiscal year budget, ending September 30, 1980,
Respondent could not authorize GSA to proceed with necessary
modifications required to meet Respondent's needs. Accordingly, a lease
for the Euless space was not awarded until October 14, 1980 (Union Exh.
1) (originally marked, and sometimes referred to in the transcript, as
Respondent Exh. 4).
3. Pursuant to his policy, Mr. Len T. Vinsko, Chief, Resource
Management Division, Internal Revenue Service, Dallas District, gives no
notice to the Union "until an actual lease is signed." (Tr. 109). While
Respondent concedes that it gave no notice to the Union of any of the
foregoing facts or circumstances, its failure to do so is not alleged as
an unfair labor practice and, accordingly, I express no opinion with
respect thereto.
4. By letter dated November 3, 1980, Mr. James Harris, President of
Chapter 46, advised the District Director, Mr. Richard C. Voskuil, in
part, as follows:
" . . . we demand to negotiate the impact and implementation of
the move of the 'Mid-Cities' office (Arlington) to another
location. We were officially notified of the move November 3,
1980.
"Furnish the Union all information available in regard to the
move and schedule a briefing on the changes by November 7, 1980.
. . . . " (G.C. Exh. 2).
5. Although there is a sharp conflict in testimony, I credit the
testimony of Mr. Vinsko and Ms. Gay Vencill that a meeting was scheduled
for November 10, 1980, but the Union did appear, as Mr. Harris was on
annual leave and it does not appear that he notified any other official
of the Union of the meeting. A further meeting was scheduled for
November 20, 1980, at which time Mr. Harris met with Mr. Vinsko and a
floor plan was reviewed. Mr. Harris does not work in the Mid-Cities
office and requested a further meeting on November 24, 1980. At the
November 24 meeting Mr. Harris was accompanied by Mr. Elbert Seal,
steward for the Mid-Cities office and Respondent was represented by Mr.
Vinsko and Ms. Janet Tietjen, a Management Analyst in charge of the
space program. Again, the floor plan was reviewed. The Union asked
about a break area and requested that the refrigerator and coffee maker
in the Arlington office be moved to the new Euless office; and
requested that some of the furniture employees had at Arlington,
including credenzas, be moved to the new office. Mr. Harris stated that
on November 20,
" . . . the floor plan shows the furniture location, and just
little symbols describe certain type of furniture. I asked them
where the credenzas would be located, if they were going to move
those; and then, also, where there would be a break room, since I
didn't recognize that on the floor plan, either.
"But that's the extent of the discussion we had that day. We
discussed the blueprint." (Tr. 21-22).
and that on November 24,
"No more than took place during the first meeting." (Tr. 22).
6. The record does not show whether Respondent gave any direct
answer to the Union's request that credenzas be moved although, as Mr.
Harris stated, they were now shown on the floor plan, and, in fact, were
not moved to the new office. Rather, Revenue Agents were given
five-drawer filing cabinets shared by two employees. (Tr. 48). The
refrigerator and coffee maker were moved and the "As-moved" floor plan
shows their location in a room designated "Supply". (Res. Exh. 1).
7. The lease specified a November 15 occupancy date; but as early
as October 20, Respondent was aware that this date could not be met and,
so, November 21 or 22 was initially fixed by GSA as the move date. (Tr.
66). Although Respondent did not advise the Union of the occupancy date
in the lease, Respondent did give Mr. Seal (and quite possibly to all
employees at Arlington)
" . . . notice and instructions on how to pack and label our boxes
and advised the date that the office would be moved.
"Q. When was this given?
"A. If my memory serves me, about the middle of November,
about four days before the original move was scheduled.
"Q. The original move? Would you explain that, please?
"A. On the first move date they had given us, November 22, and
then for some reason the move was delayed for two weeks." (Tr.
45-46).
Indeed, Ms. Tietjen testified that by November 19 it was obvious ". . .
that the space was so far from being ready that we had to postpone any
plans we had" (Tr. 66) and that an inspection on November 21 and again
on November 25 showed, inter alia, no carpet, wrong ceiling tile, no
power poles, no telephones, restrooms incomplete. (Tr. 67). On
December 3 Ms. Tietjen again inspected the space and, while power poles
were in and the telephone company had a date to begin work on the
telephones, no telephones had been installed, carpet was in place but
not glued down, door locks were not installed, and various other work
remained to be done; nevertheless, on December 3, the contractor
convinced GSA that all work would be completed before the weekend of
December 6, so GSA decided that the move would go forward on December 6
and 7 and on December 4, GSA contacted the movers and set up the move.
On December 5, 1980, Mr. David Anderson, Position Classification
Specialist, Personnel Office of Respondent, called Mr. Ed Bount, Chief
Steward, after he had tried to reach, without success, the acting
Chapter President (Mr. Harris was out of the State on official
business), and advised him that the move would begin the following day,
December 6. Mr. Seal testified that he learned of the actual moving
date "Probably about two days before we moved" (Tr. 46), so that it
would appear that Mr. Seal, and, presumably all employees at Arlington,
were told of the moving date on, or before, December 4, 1980.
8. The record does not show that the moving date was discussed on
either November 20 or 24 with the Union.
9. By letter dated November 28, 1980, and received by the Union on
December 1, 1980, the District Director, Mr. Voskuil, responded to Mr.
Harris' letter of November 3, 1980, in part, as follows:
". . .
"Len Vinsko met with you on November 20 and 24, 1980, to
clarify any questions and discuss concerns you have had regarding
this move.
"If you still wish to negotiate the Arlington move, please
submit proposals to Len Vinsko no later than December 5, 1980 . .
.." (G.C. Exh. 3).
10. By letter dated December 3, and received by Respondent on
December 4, 1980, the Union responded as follows:
"In compliance with the Union demand of November 3, 1980
regarding the proposed move of the Mid-Cities office and in
response to the letter dated November 28, 1980 from R.C. Voskuil,
District Director, the following proposals are submitted.
"1. Adequate office equipment to enable employees to perform
tasks as assigned.
"2. Equipment, such as credenzas, now assigned to employees
will continue to be available.
"3. Employees will be provided with proper space, equipment,
and facilities similar to those now provided to carry out their
work assignments and with consideration for security rules
required to be met by employees.
"4. Sufficient Metro telephone lines to meet workload
assignments and objectives.
"5. If an employee reports to work and does not have an
adequate work surface to perform required duties, the employee
will be granted Administrative leave until a work surface is
available.
"6. Provide a substantial barrier or device in front of the
office to restrain the general public from entering the area to
obtain tax forms and information. The arrangement should prevent
taxpayers from 'breaking' office security or compromising IRS
employees disclosure and security regulations.
"7. Management will request OSHA to make a safety inspection
to certify that the building meets health and safety standards for
government employees.
"8. A coffee break area similar to the present facility will
be provided. As an alternative, employees will be allowed
Administrative time to go to the nearest adequate coffee shop for
a rest break.
"9. Since the two brief information sessions on the Arlington
move provided primarily the floor plan, please furnish IRS, GSA
and other agency directives, regulations and information that you
relied on for the changes you suggested. Please provide this
information before negotiations begin.
"10. Please do not implement the changes or make the move
until negotiations are completed.
"11. Please set a negotiation date allowing five (5) days for
the Union to study your move rules and regulations and other
information to be submitted." (G.C. Exh. 4 ).
11. Mr. Vinsko responded by letter dated December 24, 1980, and
received by the Union on December 30, 1980, as follows:
"I have studied your proposals pertaining to the demand to
negotiate the move of the Mid-Cities office and have the following
comments regarding them.
"I do not believe that proposals 1 through 6 are negotiable, as
they fall within the rights of Management.
"I do not believe that proposal 7 is negotiable, as it is
already covered under Article 21 of MDA III.
"There has been no change in the area covered by proposal 8, as
employees still have space for taking breaks in the new office
location.
"I think you were afforded adequate opportunity to obtain any
needed information about the impending office move during either
of our two previous meetings on this subject. Therefore, item 9
should not be a matter of concern.
"Finally, we were forced to proceed with the move during the
December 4-6, 1980, weekend because the lease on our old office
space had expired and we could no longer legally occupy it.
"I do not feel that we have any obligation to negotiate based
on the proposals you submitted for the reasons stated above. If
you wish to discuss this matter further, please contact me by
January 9, 1981." (G.C. Exh. 5).
12. The Union did not further contact Respondent but filed the
charge herein on March 12, 1981.
13. Desks at the new location are arranged in clusters of three and
four, with one chair per desk and two telephones for each cluster,
whether three or four. (Res. Exh. 1). There are more employees than
desks and chairs.
14. As noted above, the refrigerator and coffee marker were placed
in the corner of the supply room. Ms. Tietjen testified that the 36"
round table was in place, as shown on the floor plan (Res. Exh. 1), when
she inspected the facility on Monday, December 8, 1980, but there were
no chairs so, while she was there, she had three chairs taken from the
conference room and placed around the table. Ms. Tietjen further
testified that she made a post-evaluation of the move in January, 1981,
and was informed that employees weren't using the area for breaks and
she saw boxes of forms stacked on the table. (Tr. 144-145). Although
the room is larger than the break room at Arlington (Tr. 47), it is,
primarily, a supply room with cabinets around the walls and at least one
double row of cabinets through the middle of the room. (Tr. 47). Mr.
Seal testified that the chairs are no longer there. (Tr. 47.). Mr.
Seal described the area as follows:
"We do have a refrigerator and coffee machine stuck in the
corner of the supply room. The room is a little larger than the
other (Arlington), but it also has form cabinets all the way
around the walls and shelves through the middle of it.
"So basically, all you have is aisles to get back to them.
"Q. Can you take breaks in that room as you did in the
previous room?
"A. Yes, if you wanted to stand up and drink it. There's no
place to sit down." (Tr. 47).
Conclusions
It is not questioned that Respondent was obligated to bargain on the
impact and implementation of the move of its Mid-Cities office from
Arlington to Euless. Although Respondent had known since April, 1980,
that the Arlington Office would be relocated, the Union was not given
notice until, as Mr. Harris' letter stated, November 3, 1980;
nevertheless, the only two issues alleged in the Complaint are: a) the
allegation that on, or about, December 4, 1980, Respondent relocated the
office without giving proper notice to the Union and affording it an
opportunity to bargain concerning the impact and implementation of the
relocation; and b) the allegation that since on, or about, November 3,
1980, Respondent failed and refused to furnish "IRS, GSA and other
agency directives, regulations and information that was relied on for
the decision to relocate". (Par. 9 of the Complaint).
A. The alleged refusal to furnish information
Section 14(b)(4) of the Statute provides, in part, as follows:
"(b) The duty of an agency . . . to negotiate in good faith . .
. shall include the obligation--
. . . .
"(4) . . . to furnish to the exclusive representative . . .
upon request and, to the extent not prohibited by law, data--
. . . .
"(B) which is . . . necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of
collective bargaining . . . . " (5 U.S.C. 7114(b)(4)).
The Union's demand, as stated by Mr. Harris in his letter of November
3, was:
" . . . to negotiate the impact and implementation of the move of
the 'Mid-Cities' office . . .." (G.C. Exh. 2).
In his letter of November 3, Mr. Harris requested:
". . . all information available in regard to the move . . .."
(G.C. Exh. 2).
The November 3, 1980, request for "all information available in regard
to the move" is not the allegation of the Complaint. The Union met with
Respondent twice-- on November 20 and November 24-- and the floor plan,
which showed, inter alia, furniture placement and telephone locations,
was reviewed and discussed. At neither meeting was there any request
for further or additional information and, under the circumstances, the
record shows no basis for a finding that Respondent violated Sec.
14(b)(4) of the Statute following the Union's general and unspecific
demand of November 3, 1980.
The Union's demand of December 3, 1980, had been for,
" . . . IRS, GSA and other agency directives, regulations and
information that you relied on for the changes you suggested . .
.." (G.C. Exh. 4).
This was not the allegation of the Complaint. A short answer to the
Union's request of December 3, 1980, is, as Mr. Vinsko testified (Tr.
96), that Mr. Vinsko did not rely on any IRS, GSA or other agency
directives, regulations and information. In any event, the allegation
of the Complaint is that Respondent failed and refused to furnish
"information consisting of certain IRS, GSA and other agency
directives, regulations and information that was relied on for the
decision to relocate". (Par. 9 of the Complaint).
But the request to bargain, i.e., the scope of bargaining within the
meaning of Sec. 14(b)(4)(B) of the Statute, was impact and
implementation of the move, not the decision to relocate. Not only does
the record fail to show that any of the "IRS, GSA and other agency
directives, regulations and information . . . relied on for the decision
to relocate" was necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of
collective bargaining, here, narrowly, the impact and implementation of
the move to Euless; but nothing in the record shows that such
information was material or relevant to any proposal (items 1 through 8
of the Union's December 3, 1980, letter) about which the Union sought to
bargain. Mr. Vinsko testified that during the November 20 and 24
meetings the Union brought up the fact that they felt that there were
not enough telephone lines at Arlington and there should be more lines
coming into the new office and that he (Vinsko) had responded that there
was an established procedure for requesting additional lines. (Tr.
96-97). If any information concerning this procedure, or any resulting
telephone survey, were desired it was not apparent from the Union's
request of December 3.
Accordingly, I do not find that the record establishes a violation of
Sec. 14(b)(4)(B) of the Statute or, in turn, of Secs. 16(a)(1), (5) or
(8) of the Statute.
B. The alleged refusal to bargain on the Union's proposals of
December 3, 1980.
The Union's proposals are set forth above. By letter dated December
24, 1980, Respondent refused to negotiate on Union proposals 1 through 6
for the reason that "they fall within the rights of Management." For
reasons set forth below, I do not agree. The Union's demand of November
3, 1980, which was renewed by its letter of December 3, 1980, was a
general request to bargain on the impact and implementation of the move
of the Mid-Cities office and even if the Union's specific proposals were
not negotiable, in whole or in part, Respondent was, nevertheless,
obligated to respond and bargain in good faith. The Adjutant General's
Office, Puerto Rico Air National Guard, 3 FLRA No. 55, 3 FLRA 342, 345
(1980). In considering negotiability disputes, the Authority must,
necessarily, consider the specific proposals; but I do not believe that
such structures have application where, as here, a union's proposals,
even if non-negotiable in some respect, encompass matters on which
Respondent was obligated to bargain. For example, if the Union's
proposal No. 1, "Adequate office equipment to enable employees to
perform tasks as assigned" were deemed non-negotiable, it seems obvious
that Respondent nevertheless has an obligation to bargain about the
effect of the absence of adequate office equipment. Indeed, Union
proposal No. 5 sought to do so. When an agency or activity does not
provide a desk and chair for each employee whose work requires such
equipment, I can not conceive that there is not an obligation to
negotiate on the impact and implementation of management's decision.
/8/ The object of bargaining in good faith is to arrive at a mutually
acceptable adjustment. This was made clear by the Authority in the
Puerto Rico Air National Guard case, supra, in which the Authority
stated, in part, as follows:
" . . . Although the specific proposals clearly were not
negotiable because they conflicted with TPM 351, a regulation for
which a compelling need existed . . . the nature of the requests
did not alter the Respondent's obligation to respond and bargain
in good faith." (3 FLRA at 345).
Union proposal No. 2, "Equipment, such as credenzas, now assigned to
employees will continue to be available" and Union proposal No. 3, in
part, was that "Employees will be provided with proper space, equipment,
and facilities similar to those now provided . . . . " were essentially
like proposals VIII, IX and X in American Federation of State, County
and Municipal Employees, et al. and Library of Congress, Washington,
D.C., 7 FLRA No. 89 (1982), which the Authority held were negotiable.
Here, as in the Library of Congress case, supra, credenzas, for example,
while used for storage of files, were not shown to be part of the
technical method used by Respondent for accomplishing or furthering the
performance of its work. To the contrary, as in the Library of Congress
case,
" . . . such space relates principally to matters affecting
working conditions of employees, allowing them to keep and use
such reference materials nearby their work station."
Respondent made its own determination of its space requirements and
had prepared its floor plan by September 16, 1980, although, because of
the lack of funds, the lease was not signed until October 14, 1980, and
the Union was not given notice, as Mr. Harris stated in his letter,
until November 3, 1980. The Complaint alleges only that Respondent on,
or about, December 4, 1980, changed existing terms and conditions of
employment by relocating employees without proper notice to the Union
and an opportunity to bargain concerning the impact and implementation
of the relocation. Consequently, I am aware that by December 3, 1980,
Respondent's discretion as to space may have been far more restricted
than it would have been earlier in the process. Nevertheless Union's
proposal No. 3 as to "proper space" was substantially similar to "office
size" in the Library of Congress case, supra, as to which the Authority
stated, in part, as follows:
" . . . the Agency has made no showing whatsoever that 'office
size' . . . constitutes part of the technical method used . . .
for accomplishing or furthering the performance of its work. In
the absence of such a showing, the size of offices would be merely
incidental to the performance of the Agency's work and would be
principally related to matters affecting working conditions of
employees . . .."
Of course, this case does not concern individual offices or their size;
nevertheless, the Union proposal concerned "proper space" which
principally related to matters affecting working condition. The record
shows that Ms. Tietjen prepared a floor plan which, inter alia, placed
desks in clusters and placed file cabinets around the walls away from
work areas. Whether adjustments could have provided more proper space
or improved working conditions could be determined only by good faith
bargaining.
In the Library of Congress case, supra, the Union proposal (X), had
concerned partitions to insure quiet in open areas. Here, the Union's
proposal 6 was for a ". . . substantial barrier in front of the office
to restrain the general public from entering the area to obtain tax
forms" to prevent compromise of "office security" in violation of
Respondent's "security regulations". In the Library of Congress case,
supra, the Authority stated:
" . . . the partitions required by the proposal would be merely
incidental to the performance of the Agency's work and would be
principally related to matters affecting working conditions of
employees."
In like manner, the barrier proposed by the Union was incidental to the
performance of the Agency's work and principally related to matters
affecting working conditions of employees, and even if the Union's
specific proposal, "a substantial barrier" were deemed non-negotiable,
the nature of the request, i.e., the impact on working conditions of the
presence of unauthorized persons in work areas, was negotiable.
Union proposal No. 8 concerned a coffee break area similar to the
present facility or; alternatively, break time. Respondent's reply of
December 24 was that "There has been no change in the area covered by
proposal 8, as employees still have space for taking breaks in the new
office location." The proposal concerned working conditions of employees
and was within Respondent's duty to bargain. Respondent was partially
correct in that space for breaks had been provided; but this did not
render the Union's proposal non-negotiable nor fulfill Respondent's
obligation to bargain. As the record shows, the break area at Euless
was a corner of a supply room; there was a major change from the break
area at Arlington including the fact that as planned by Respondent the
space for the break area was very much smaller, was not a separate break
room, there was room for only a single table and three chairs, and the
room was largely filled with file cabinets and/or shelves. Obviously,
good faith bargaining might have produced a solution mutually
acceptable, whereas employees made no use of the break area as provided
and, because it was not used, the chairs had been removed and the table
used for storage.
Union proposals 4 and 7 were not negotiable. Proposal No. 4
concerned "technology, methods, and means of performing work" and was
negotiable only at the election of Respondent. Although Mr. Vinsko
stated that at the November 20 and 24 meetings he had responded that
there was an established procedure for requesting additional lines, his
response does not indicate any election by Respondent to negotiate the
matter. Union proposal No. 7 was that Respondent request OSHA to make a
safety inspection of the building. Although it was consistently
recognized under the Executive Order that bargaining was required on
appropriate health and safety proposals notwithstanding the management
rights provisions of the Executive Order, see, for example, National
Treasury Employees Union, Chapter No. 010 and Internal Revenue Service,
Chicago District, 4 FLRC 125 (1976); National Federation of Federal
Employees, Local 122 and Veterans Administration, Atlanta Regional
Office, Atlanta, Georgia, 6 FLRC 828 (1978), and the obligation to
bargain would be no different under the essentially like provisions of
Sec. 6 of the Statute, I have grave reservations that the Union's
proposal was an appropriate proposal, inter alia, for the reason that
the Occupational Safety and Health Act does not include the United
States (29 U.S.C. 651 et seq.); nevertheless, I do not reach this
question and conclude, rather, that the Union's proposal was not
negotiable because Article 21, Section 11 of the parties collective
agreement (Res. Exh. 5) provided for a Safety Advisory Committee to
consider "work-related safety matters" and the Committee is to "give due
regard to Public Law 91-596 (the Occupational Safety and Health Act) and
any applicable guidelines developed by the U.S. Department of Labor
related thereto." (Res. Exh. 5). cf. Department of the Air Force,
Davis-Monthan Air Force Base, Tucson, Arizona, A/SLMR No. 1088, 8 A/SLMR
810 (1978).
Having found that Respondent was obligated to bargain on the impact
and implementation of the relocation of the Mid-Cities office and that
the Union sought to bargain on proposals which were, at least in part,
negotiable, it is unnecessary to consider further each aspect of each
Union proposal. Except as specifically noted, I express no opinion as
to whether the Union's proposals were negotiable and I neither hold, nor
is any such effect to be inferred, that the Union's proposals were in
whole subject to mandatory bargaining. To the contrary, it is
recognized that Respondent's right to determine "the technology,
methods, and means of performing work" (Sec. 6(b)(1)) may not be made
the subject of mandatory bargaining under the guise of bargaining on
impact and implementation, or as the Statute states it, "procedures
which management . . . will observe in exercising" such authority or
"appropriate arrangements for employees adversely affected by the
exercise" of such authority (Sec. 6(b)(2) and (3)). Of course, the
converse is equally true, namely, that the exercise by management of a
reserved right does not immunize management from the obligation to
bargain as to the impact and implementation of the exercise of the
reserved right of management.
The Union conceded notice of the move on November 3 and Respondent
met with the Union on November 20 and 24 pursuant to the Union's request
to negotiate the impact and implementation of the move of the Mid-Cities
office. At best, the Union was lackadaisical. From the record, it does
not appear that the Union ever inquired when the move was expected to
take place; on the other hand, Respondent clearly made no effort to
share with the Union the information it possessed. Consequently, while
the Union was dilatory in proceeding with its request to bargain, it
submitted its proposals well within the time frame of the District
Director's letter of November 28. Respondent received the Union's
letter of December 3, 1980, on December 4, at which time it well knew
that GSA had fixed the date for the move for December 6 and 7; but it
made no effort to meet with the Union and only belatedly advised the
Union on December 5 that the move would begin the following day.
Indeed, Respondent did not reply to the Union's December 3 letter until
December 24, 1980, nearly three weeks after the move had been completed.
It is clear that Respondent did not wholly control the move date;
however, the record does not show any effort by Respondent to defer the
move date in order to meet with the Union, nor does the record show that
such request, if made by Respondent, would have been ineffectual. On
the other hand, while Respondent did not know until December 3 that the
move actually would take place on the weekend of December 6 and 7, it
did know that the move was imminent; but in its letter of November 28
to the Union it gave the Union no information as to the status of work
on the new facility and no notice whatever that the move was imminent or
even contemplated in the near future. Respondent did not negotiate on
the Union's proposals, which, as found above, raised matters on which
Respondent was obligated to bargain, prior to the move and thereby
violated Secs. 16(a)(5) and (1) of the Statute. It is not possible to
restore the status quo ante; however, to remedy the unfair labor
practice found, bargaining will be ordered, upon request of the Union,
on the impact and implementation of the relocation of the Mid-Cities
office to Euless, Texas, to the extent consonant with law and
regulations, fully as if such negotiations had occurred prior to the
move. That is, the Union's right to negotiate shall not be limited or
restricted in any manner because the move has been completed and any
matter about which the Union could lawfully have demanded impact and
implementation bargaining prior to the move it may now lawfully demand
impact and implementation bargaining and neither cost nor inconvenience,
because the move has been completed, shall either limit or preclude the
Union's right to bargain to the full extent consonant with law and
regulations inasmuch as Respondent unlawfully implemented the move
without bargaining on the Union's demand for negotiations in violation
of its bargaining obligation under the Statute.
Having found that Respondent violated Secs. 16(a)(5) and (1) of the
Statute by its failure and refusal to bargain in good faith on the
impact and implementation of the relocation of its Mid-Cities Office, I
recommend that the Authority adopt the following:
ORDER
Pursuant to Sec. 2423.29 of the Regulations, 5 C.F.R. 2423.29, and
Sec. 18 of the Statute, 5 U.S.C. 7118, the Authority hereby orders that
the United States Department of The Treasury, Internal Revenue Service,
Dallas District, shall:
1. Cease and desist from:
(a) Refusing to negotiate in good faith with the National
Treasury Employees Union, National Treasury Employees Union,
Chapter 46 (hereinafter referred to as the "Union"), the exclusive
representative of its employees, to the extent consonant with law,
regulations and the Statute, as to the impact and implementation
of the relocation of its Mid-Cities Office from Arlington, Texas,
to Euless, Texas.
(b) In any like or related manner, interfering with,
restraining, or coercing its employees in the rights assured by
the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, negotiate in good faith with the Union as to
the impact and implementation of the relocation of its Mid-Cities
Office from Arlington, Texas, to Euless, Texas. The Union shall
have the right to negotiate on the impact and implementation of
the relocation to the full extent consonant with law and
regulations and, in the exercise of such right, shall not be
restricted or confined to those proposals submitted by letter
dated December 3, 1980. Respondent is obligated to negotiate as
to impact and implementation only to the extent consonant with law
and regulations notwithstanding the Union's proposals of December
3, 1980; however, Respondent's obligation to negotiate in good
faith shall not be limited or restricted in any manner because the
relocation has been completed.
(b) Post at its facilities in Dallas, Texas, and at its
Mid-Cities Office in Euless, Texas, 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 District Director, Internal Revenue Service, Dallas
District, and they shall be posted for 60 consecutive days
thereafter in conspicuous places, including all 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 Regional Director of the Federal Labor Relations
Authority for Region VI, whose address is: P.O. Box 2640, Dallas,
Texas, 75221, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply therewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: June 4, 1982
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to negotiate in good faith with the National Treasury
Employees Union, National Treasury Employees Union, Chapter 46, the
exclusive representative of our employees, to the extent consonant with
law and regulations, as to the impact and implementation of the
relocation of our Mid-Cities Office from Arlington, Texas, to Euless,
Texas. 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, negotiate in good faith with the National Treasury
Employees Union, National Treasury Employees Union, Chapter 46, on the
impact and implementation of the relocation of our Mid-Cities Office
from Arlington, Texas, to Euless, Texas. The Union shall have the right
to negotiate on the impact and implementation of the relocation to the
full extent consonant with law and regulations and, in the exercise of
such right, shall not be restricted or confined to those proposals
submitted by letter dated December 3, 1980. We are obligated to
negotiate as to impact and implementation only to the extent consonant
with law and regulations notwithstanding the Union's proposals of
December 3, 1980; however, we recognize that our obligation to
negotiate in good faith shall not be limited or restricted in any manner
because the relocation has been completed.
(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, Region 6, whose address is: Federal
Labor Relations Authority, Region VI, P.O. Box 2640, Dallas, Texas,
75221, and whose telephone number is: (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1/ Noting particularly the absence of exceptions thereto, the
Authority adopts the Judge's conclusion that the Respondent did not fail
to comply with its obligations under section 7114(b)(4), in violation of
section 7116(a)(1) and (8) of the Statute, by refusing to furnish
certain data to the Charging Party.
/2/ Section 7116(a)(1) and (5) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/3/ The Authority adopts the Judge's conclusion that the first part
of Proposal No. 8, "A coffee break area similar to the present facility
will be provided," is negotiable. Since the Authority finds that a
coffee break area was provided in the new facility, albeit without
bargaining, it is unnecessary to make a finding as to the negotiability
of the second part of the proposal providing, as an alternative,
administrative time for employees to go to the nearest adequate coffee
shop for a rest break.
/4/ Section 7106(b)(1) provides:
Sec. 7106. Management rights
. . . .
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency, on the numbers, types, and
grades of employees or positions assigned to any organizational
subdivision, work project, or tour of duty, or on the technology,
methods, and means of performing work(.)
/5/ Section 7106(a)(1) provides:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
(1) to determine the . . . internal security practices of the
agency(.)
/6/ In modifying the Judge's Order, the Authority affirms his finding
that a status quo ante remedy is not appropriate herein.
/7/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7116(a)(1) will be referred to, simply,
as "16(a)(1)".
/8/ See: 124 Cong.Rec.H 13607, Oct. 14, 1978; Legislative History
pp. 993-994.