[ v16 p141 ]
16:0141(27)CA
The decision of the Authority follows:
16 FLRA No. 27
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
MIDWEST REGIONAL OFFICE
CHICAGO, ILLINOIS
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 95
Charging Party
Case No. 5-CA-1052
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices and recommending that it be ordered to
cease and desist therefrom and take certain affirmative action. The
Judge further found that the Respondent had not engaged in other alleged
unfair labor practices and recommended that the complaint be dismissed
with respect to such allegations. Exceptions to the Judge's Decision
were filed by the Respondent and the General Counsel. The Respondent
filed an opposition to the General Counsel's exceptions, and the
Charging Party filed a brief in support of the General Counsel and in
opposition to the Respondent's exceptions.
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 as modified herein.
This case arose in connection with the Respondent's relocation of its
St. Louis, Missouri Appeals Office from the Federal Courts Building to
the St. Louis Mart Building in December 1980. The Charging Party,
National Treasury Employees Union and National Treasury Employees Union,
Chapter 95 (the Union), was apprised of the likelihood of the move in
September. On September 30 it submitted proposals for bargaining
regarding the move which were received by the Respondent on October 14.
In its reply, by letter dated November 25, the Respondent alleged that
all of the Union's proposals were outside the duty to bargain; informed
the Union that it intended to begin implementation in early December;
and noted that it would continue to entertain additional suggestions or
concerns.
The Union submitted a second package of proposals to the Respondent
on December 4, 1980. While the affected employees received packing
boxes on or about December 3 and it became apparent to them that the
move was imminent, the Union was not notified of when the move would
occur and the move was effectuated during the weekend of December 6-7.
The Respondent received the Union's amended package of proposals on the
following Monday, December 8.
Respondent replied to the Union's amended position on December 31,
1980, stating that the proposals were outside the duty to bargain, but
that the Union's concerns regarding the move could be discussed at the
parties' regularly scheduled labor-management meeting in Chicago on
January 7, 1981. About 15 minutes of this meeting, which lasted for
about three hours, were devoted to the St. Louis move. There was no
bargaining. Respondent's representatives noted that certain of the
Union's concerns should be negotiated with Respondent's officials in St.
Louis and advised the Union that its other concerns would be resolved by
a planned move of the St. Louis office in March 1981. /1/
The Judge examined the Union's September 30, 1980 proposals and
determined that certain of them were within the duty to bargain. He
concluded that the Respondent's allegation that all of the proposals
were outside the duty to bargain was in error and that the Respondent's
November 25, 1980 refusal to negotiate concerning them constituted a
violation of section 7116(a)(1) and (5) of the Statute. /2/ Contrary to
the Judge, the Authority concludes that the allegations in the complaint
that the Respondent violated the Statute on November 25, 1980 should be
dismissed. In our view, when the Union received the Respondent's
November 25, 1980 reply to its first package of proposals, reconsidered
its position, and forwarded a new package of proposals to the Respondent
on December 4, 1980, and did not thereafter pursue the originally
submitted proposals, the Union in effect withdrew its first package of
proposals from the bargaining table.
The Judge also found that certain of the Union's December 4, 1980
proposals were within the duty to bargain and concluded that the
Respondent improperly refused to bargain concerning them. As to the
duty to bargain over the specific proposals, the Authority finds as
follows:
The Respondent alleged that the Union's first proposal, which
concerned the procedure for assignment of desks at the new location, was
outside the duty to bargain because it conflicted with its right to
determine the "technology" of performing its work under section
7106(b)(1) of the Statute. /3/ To sustain such a contention under the
Statute, an agency must show that its choice of office space design and
its assignment of equipment and furniture has a meaningful technological
relationship to the accomplishment and furtherance of its work and that
the proposal in question would interfere with these purposes. Internal
Revenue Service, Chicago, Illinois, 9 FLRA 648 (1982), enforcement
denied on other grounds sub nom. Internal Revenue Service v. Federal
Labor Relations Authority, 717 F.2d 1174 (7th Cir. 1983); 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); National Treasury Employees
Union and NTEU Chapter 80 and Department of the Treasury, Internal
Revenue Service, Central Region, 8 FLRA 197 (1982) (Proposals 1-6). In
the instant case, the Judge found that the disputed proposal simply
concerned the assignment of desks and that it was not concerned with the
Respondent's choice of its functional office space design. The
Authority concurs. The Respondent's contentions that the proposal
conflicts with its rights under section 7106(b)(1) because it would
determine the Respondent's functional office design are inapposite. In
addition, assuming that the Respondent's choice of its office design
represents a determination regarding "technology" under section
7106(b)(1), the Respondent has not shown that the proposal would
interfere with its determination in any significant way. It is
concluded, therefore, that the proposal is within the duty to bargain.
The Judge concluded that the Union's second proposal, regarding the
procedures of the move, was outside the duty to bargain because the
Union's submission of this proposal was untimely. The Authority does
not concur with this conclusion. While the Union acted with dispatch in
submitting proposals to the Respondent when it became apprised of the
likelihood of the move in September, the Respondent took nearly 30 days
to respond. The Union acted with reasonable dispatch in reconsidering
its position and forwarding a revised package to the Respondent.
Although the amended package was sent at what turned out to be the
"eleventh hour," the Union was never notified of the date that the move
would occur. A waiver will be found regarding an exclusive
representative's rights to negotiate only if it can be shown that the
exclusive representative clearly and unmistakably waived its right.
See, e.g., Department of the Treasury, United States Customs Service,
Region I, Boston, Massachusetts, and St. Albans, Vermont District
Office, 10 FLRA 566 (1982); Library of Congress, 9 FLRA 427 (1982). In
the instant case, where the Union could not have known that its proposal
would be late, a finding that the Union had waived its right to
negotiate would be inappropriate. Accordingly, as it does not appear
that the proposal is outside the duty to bargain on any other grounds,
the Authority concludes that the second proposal is within the duty to
bargain.
The Union's third proposal would require the Respondent to negotiate
concerning the adverse effects of fewer conference rooms at the new
location on the employees' workload. Specifically, the Union proposed
to limit the employees' workloads at the new location or take account of
limited access to conference rooms in evaluating the unit employees'
work performance. The Judge found that the proposal was negotiable,
concluding that the Respondent was "free to assign whatever amount of
work it chose," and that "the Union was seeking only to negotiate on the
adverse effect of that assignment, given the current conditions." In
this regard, the Authority has determined that the rights of an agency
"to direct" and "to assign work" to employees under section
7106(a)(2)(A) and (B) of the Statute /4/ encompass the determination of
the quantity, quality and timeliness of employees' work. National
Treasury Employees Union and NTEU, Chapter 72 and Internal Revenue
Service, Austin Service Center, 11 FLRA No. 58 (1983); American
Federation of Government Employees, AFL-CIO, Local 1923 and Department
of Health and Human Services, Social Security Administration, 12 FLRA
No. 6 (1983); National Treasury Employees Union and Department of the
Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), affirmed sub
nom. National Treasury Employees Union v. Federal Labor Relations
Authority, 691 F.2d 553 (D.C. Cir. 1982). The Authority has also
determined that such rights include the right to determine the aspects
of employees' work which would be included in employees' performance
appraisals. See American Federation of Government Employees, AFL-CIO,
Local 3004 and Department of the Air Force, Otis Air Force Base,
Massachusetts, 9 FLRA 723 (1982), and the precedent cited therein.
Accordingly, the Authority has held that proposals which would require
management to negotiate on the substance of such determinations, i.e.,
regarding the work to be required of employees or the aspects of
employees' work to be considered in performance evaluations, were
outside the duty to bargain. As this is the intent of the disputed
proposal in this case, the Authority concludes, contrary to the Judge,
that the proposal is outside the duty to bargain in its entirety.
The Union's fourth proposal, which concerned the effect of Privacy
Act requirements at the new location, was alleged to be outside the duty
to bargain on the basis that it would conflict with the Respondent's
right to determine its internal security practices under section
7106(a)(1) of the Statute. /5/ In agreement with the Judge, the
Authority finds that the purpose of the proposal was to require the
Respondent to provide guidance to employees regarding their obligations
under the Privacy Act under the new and arguably more difficult office
conditions. It was not intended to set or modify the Respondent's
internal security practices. Cf. American Federation of Government
Employees, AFL-CIO, Local 2272 and Department of Justice, U.S. Marshals
Service, District of Columbia, 9 FLRA 1004, 1010-11 (1982) (proposals
held to conflict with section 7106(a)(1) on the basis that the proposals
would determine internal security practices). Accordingly, as it is not
apparent that the proposal would determine the Respondent's internal
security practices or interfere with the effectuation of such practices
and the Agency has not shown that the proposal would have such an
effect, it is concluded that the proposal does not conflict with section
7106(a)(1) and it is within the duty to bargain. See, e.g., National
Treasury Employees Union and Department of the Treasury, U.S. Customs
Service, 9 FLRA 983 (1982) remanded as to other matters sub nom.
Department of the Treasury, U.S. Customs Service v. Federal Labor
Relations Authority, No. 82-2225 (D.C. Cir. Jan. 19, 1984); American
Federation of Government Employees, AFL-CIO, Local 1760 and Department
of Health, Education and Welfare, Social Security Administration,
Northeastern Program Service Center, Flushing, New York, 8 FLRA 202
(1982) and the cases cited therein.
Based on these findings the Authority has determined, in agreement
with the Judge, that the Respondent erred in alleging that all of the
Union's December 4, 1980 proposals were outside the duty to bargain, and
it is concluded that the Respondent's failure and refusal to negotiate
with the Union on that basis was improper. The Authority also concurs
with the Judge's conclusion that the parties' discussion of the move at
their regularly scheduled labor-management meeting of January 7, 1981,
did not cure the Respondent's failure and refusal to bargain and that
Respondent's conduct constituted a violation of section 7116(a)(1) and
(5) of the Statute.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority hereby orders that the
Department of the Treasury, Internal Revenue Service, Midwest Regional
Office, Chicago, Illinois, shall:
1. Cease and desist from:
(a) Failing and refusing to negotiate with the National Treasury
Employees Union and National Treasury Employees Union, Chapter 95, the
employees' exclusive representative at the St. Louis Appeals Office, on
the procedures to be observed in implementing its decision to relocate
that Office, and the impact of such decision on unit employees'
conditions of employment, including the assignment of desks and the
furnishing of information and advice to employees concerning their
obligations under the Privacy Act.
(b) Instituting any future change in the location of the St. Louis
Appeals Office worksite without first notifying the National Treasury
Employees Union and National Treasury Employees Union, Chapter 95 of the
actual date of the change, and without affording the employees'
exclusive representative the right to negotiate, on the procedures which
management officials will observe in implementing such a relocation and
appropriate arrangements for employees adversely affected by the
relocation of the worksite.
(c) 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 Federal Service Labor-Management Relations
Statute:
(a) Upon request of the National Treasury Employees Union and
National Treasury Employees Union, Chapter 95, meet and negotiate with
respect to the proposals submitted on December 4, 1980 concerning the
procedures and impact of the relocation, including the assignment of
desks and the furnishing of information concerning the employees'
obligations under the Privacy Act.
(b) With regard to any future relocation of the St. Louis Appeals
Office worksite, notify the National Treasury Employees Union and
National Treasury Employees Union, Chapter 95 and afford the exclusive
representative the opportunity to negotiate concerning the procedures
which management officials will observe in implementing the relocation
and appropriate arrangements for the employees adversely affected by the
relocation of the worksite.
(c) Post at its St. Louis Appeals Office 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
Regional Commissioner, Midwest Region 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
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 V, 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 allegations of the complaint in Case
No. 5-CA-1052 found not to have violated the Statute be, and they hereby
are, dismissed.
Issued, Washington, D.C., October 2, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, 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 with the National Treasury
Employees Union and National Treasury Employees Union, Chapter 95, the
employees' exclusive representative at the St. Louis Appeals Office, on
the procedures to be observed in implementing the decision to relocate
that Office, and on the impact of such decision on unit employees'
conditions of employment, including the assignment of desks and the
furnishing of information and advice to employees concerning their
obligations under the Privacy Act.
WE WILL NOT institute any future changes in the location of the St.
Louis Appeals Office worksite without first notifying the National
Treasury Employees Union and National Treasury Employees Union, Chapter
95 nor fail to afford the exclusive representative the opportunity to
negotiate, on the procedures to be observed in implementing the
relocation and on the impact of such relocation on employees' conditions
of employment, including the assignment of desks and the furnishing of
information and advice to employees concerning their obligations under
the Privacy Act.
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
Statute.
WE WILL negotiate with the National Treasury Employees Union and
National Treasury Employees Union, Chapter 95, at the exclusive
representative's request, on the procedures to be observed in
implementing the relocation of the St. Louis Appeals Office and the
impact of the relocation on employees' conditions of employment,
including the assignment of desks and the furnishing of information and
advice to employees concerning their obligations under the Privacy Act.
(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 V, Federal Labor Relations Authority, 175 West Jackson
Boulevard, Chicago, Illinois 60604, and whose telephone number is (312)
353-0139.
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
MIDWEST REGIONAL OFFICE,
CHICAGO, ILLINOIS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION,
AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 95
Charging Party
Case No. 5-CA-1052
Jeffrey J. Sieburg, Esq. and
Dennis J. Fox, Esq. and
James M. Gecker, Esq., on the brief
For the Respondent
Richard Edelman, Esq.
For the Charging Party
Sandra Le Bold, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
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.
Upon an unfair labor practice charge filed by the National Treasury
Employees Union, and National Treasury Employees Union, Chapter 95
(jointly referred to as the Union) on April 6, 1981 against the
Department of the Treasury, Internal Revenue Service, Midwest Regional
Office, Chicago, Illinois (IRS or Respondent), the General Counsel of
the Authority, by the Acting Regional Director for Region 5, issued a
Complaint and Notice of Hearing on June 25, 1981 alleging that
Respondent had engaged in and is engaging in unfair labor practices
within the meaning of section 7116(a)(1) and (5) of the Statute. The
Complaint alleges that Respondent refused to enter into negotiations
with the Union on the impact and implementation of a decision to change
the location of Respondent's St. Louis, Missouri Appeals Office.
A hearing on the Complaint was conducted on September 16, 1981 in
Chicago, Illinois at which time all parties were represented by counsel
and afforded full opportunity to adduce evidence, call, examine and
cross-examine witnesses, and argue orally. Briefs were filed by all
parties.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following:
Findings of Fact
Respondent's Operations
At all times material herein, the National Treasury Employees Union
has been recognized as the exclusive representative of Respondent's
employees, including but not limited to, all professional and
non-professional employees of the St. Louis, Missouri Appeals Office of
the Midwest Regional Office, Internal Revenue Service, but excluding all
management officials, supervisors, confidential employees, all employees
of the Intelligence Division, all employees engaged in Federal Personnel
work in other than a purely capacity, and guards. At all times material
National Treasury Employees Union, Chapter 95 has been an agent of the
National Treasury Employees Union acting on its behalf in dealing with
Respondent.
Respondent's St. Louis, Missouri Appeals Office is a branch of the
Midwest Region Appeals Office located in Chicago, Illinois and receives
appeals from taxpayers who do disagree with District IRS Office
determinations of their cases. The Appeals Office employs Appeals
Officers, who attempt to resolve such cases, and various support
personnel, including Appeals Auditors, Aides, and Clerks.
Upon being assigned a case, an Appeals Officer evaluates the
positions taken by the District Office and the taxpayer, researches the
case and dictates a rough draft of an evaluation of the two positions.
The Appeals Officer then arranges for a hearing, or conference, in which
the taxpayer, usually with a representative, may present further
arguments or facts pertinent to the case.
Because tax return information may not be disclosed to unauthorized
persons, conferences must be conducted in circumstances which insure the
confidentiality of the discussions held therein. Under the Privacy Act,
5 U.S.C. 552(a), an Appeals Officer could be civilly and criminally
liable for a breach of a taxpayer's right to confidentiality and Appeals
Officers, therefore, must guard against improper disclosure of
information.
Frequently cases handled by Appeals Officers are factually complex
and highly technical, and require the use of a law library. After the
facts of a case and the controlling law are analyzed, an Appeals Officer
summarizes the facts and issues a dispositive decision together with a
supporting statement, which may be as long as fifty pages.
Appeals Officers are subject to various time deadlines imposed by
IRS. A conference with a taxpayer must be arranged within forty-five
days of receipt of an "in-town" case and ninety days of receipt of an
"out-of-town" case. A case not completely disposed of within one year
is considered overaged. Additionally, Appeals Officers are subject to
limitations on time which may be spent on a particular type of case.
When management appraises the performance of an Appeals Officer it
considers, among other things, the time it takes for an Appeals Officer
to dispose of a case, the quantity of cases handled, and the quality of
the decisions issued. St. Louis Appeals Officers are eligible to
compete for promotions not only in their own office but throughout the
Midwest Region as well.
The St. Louis Appeals Office previously was located in the Federal
Courts Building at 1114 Market Street. At that location each Appeals
Officer had an individual office with carpeting and drapes which were
effective as sound suppressants. Conferences with taxpayers were held
in those offices and Appeals Aides were generally located immediately
outside the offices of the Appeals Officers. The Appeals Office has a
separate library and separate copying facilities. Additionally, Appeals
Officers had access for research purposes to the Eighth Circuit Court of
Appeals library which was in the same building.
Chronology of Events
In approximately June 1979 the General Services Administration (GSA)
initiated a courts expansion program at the St. Louis Market Street
Federal Courts Building. GSA approaches the IRS and requested that some
IRS facilities be moved from the Market Street Building to other office
space. A determination was made by Respondent to move the Appeals
Office. In order to accomplish this move, market surveys were conducted
by GSA and a potential lessor was located. However, GSA was unable to
reach a final agreement with this lessor. Due to the impending
completion of the courts expansion project and the need for the Appeals
Office to vacate the Market Street Building, GSA requested and
Respondent agreed to accept temporary space in the Mart Building, also
located in St. Louis. IRS considered the move to the Mart Building as
temporary and received assurances from GSA to that effect.
At some undisclosed time the Union was made aware of the move and in
a memorandum dated September 10, 1980 to Frank Brafman, Chief, St. Louis
Appeals Office, Anna Jobson, an Appeals Officer and NTEU Chapter 95
Union Steward, requested the right to negotiate the substance, impact
and implementation of the planned move to the Mart Building. Brafman
forwarded this request to Michael Sappingfield, Chief, Personnel Branch,
Midwest Region, Chicago, Illinois who is responsible for handling labor
relations matters for management.
On September 23, 1980 Ms. Jobson received a telephone call from the
IRS Regional Director of Appeals who inquired as to what problems Jobson
had with the relocation. Jobson responded that she had little
information regarding the move and indeed, had not seen a floor plan of
the intended Mart Street Office space. The Regional Director assured
her she would receive a floor plan.
On September 25, 1980 Jobson received a letter from Sappingfield
dated September 22 requesting that she submit written proposals and
suggestions by October 1 so they might be considered prior to
effectuating the move. /6/ Jobson then met on two occasions with local
representatives of management to obtain more specific information
concerning the move, received a copy of the floor plan, and visited the
Mart Building. Thereafter, by letter dated September 30 Jobson sent
Sappingfield nine "proposals and suggestions for negotiation." Jobson
supplied a copy of this letter to her St. Louis Associate Chief. The
proposals concerned: (1) a suggestion for six rather than the two or
three planned conference rooms at the Mart Building, and situating the
conference rooms at a location more proximate to the Appeals Officer's
offices than was shown on the floor plan to avoid public access through
Records' and Auditors' areas; (2) removal or moving a wall in Appeals
Officer Disbrow's office to provide direct access to the office entrance
for other Appeals Officers; (3) providing an Appeals Officer with other
quarters since an air return duct to a public hallway from the office
created both a privacy and security problem; (4) placing a receptionist
at the office entrance and providing the receptionist with sufficient
privacy to prevent disclosure of her work to the general public; (5)
providing each Appeals Officer and other employees with adequate space
for furniture and equipment so that walking sideways between desks and
walls would not be necessary; (6) relocating the intended site of the
shared library from the District Counsel's area to a location more
accessible for Appeals Officers; (7) avoiding safety hazards created by
telephone and other wires hanging from the ceiling; (8) cleaning,
painting and repairing the Mart Building; and (9) advising employees
what security measures should be taken to prevent unauthorized
disclosure of information since the Mart Building space, in Jobson's
opinion, fell short of the security provisions of the Privacy Act.
Jobson added that management would assume "responsibility for any
violations of the Privacy Act due to inadequate and poor provisions of
space and equipment."
Jobson's September 30 letter was received by Sappingfield on October
14, 1980. /7/ Upon receipt of the letter, Sappingfield provided copies
of the proposals to Respondent's Regional and National labor relations
staffs for determination of the negotiability of each proposal and also
provided a copy to IRS's Regional Facilities Management for an
assessment as to any problems they might perceive in the proposals.
Sappingfield received comments from the National Office and Regional
Facilities sometime during the first or second week of November 1980 and
Sappingfield responded to Jobson's September 30 proposals by letter
dated November 25. /8/ It was Respondent's position that the proposals
either imposed no obligation or were nonnegotiable under the Statute.
Thus, Respondent informed Jobson that: (1) the number and location of
Appeals conference rooms involved management's right to determine the
technology, methods, and means of performing work under section
7106(b)(1) of the Statute, /9/ and Appeals Officers could use for
conferences, rooms set aside by District Counsel for visiting attorneys,
and the matter of lack of privacy in the Records Auditors' area
concerned an internal security practice and therefore, not negotiable
under section 7106(a)(1) of the Statute; /10/ (2) the removal of
Appeals Officer Disbrow's wall was not negotiable since it was beyond
the administrative control of Respondent; (3) the location of the air
return duct was also beyond Respondent's administrative control and the
location of the office was part of " . . . the technology, methods, and
means of performing work" and accordingly, no obligation to bargain on
the matter exists; /11/ (4) proposals concerning the receptionist
interferes with management's right to assign employees under section
7106(a)(2)(A) of the Statute and is therefore, nonnegotiable /12/ and,
in any event, the floor plan inadvertently omitted the location of a
receptionist near the office entrance; (5) while management
acknowledged respect for the dignity of employees as set forth in the
parties collective bargaining agreement, /13/ nevertheless, the amount
of space allocated employees is a matter of technology over which
management was under no obligation to bargain and, in any event, GSA had
indicated it would remove all existing partitioning to facilitate the
move and re-erect partitions after all furniture and equipment was in
place which would insure that all employees would have adequate work
space; (6) the subject of Appeals library space involved the technology
methods, and means of performing work within the meaning of section
7106(b)(1) of the Statute to which no obligation to bargain attaches;
(7) management's commitment to employee safety is set forth in Article
20 of the parties collective bargaining agreement /14/ and IRS was
installing power poles and wall mounting the majority of telephones
which would eliminate the hazards posed by dangling and exposed wires;
(8) housekeeping matters were beyond IRS' administrative control and
therefore not negotiable since GSA was responsible for housekeeping and,
it was noted, GSA had indicated that they would clean work areas, and
replace defective tiles, etc.; and (9) disclosure and security measures
were nonnegotiable under section 7106(a)(1) of the Statute, supra, since
they involve internal security practices, and a Disclosure Officer or
Specialist was available to provide information to employees on
preventing unauthorized disclosures.
Sappingfield's letter concluded " . . . even though we intend to
begin implementation in early December, we will continue to entertain
any additional suggestions or concerns you might have, and will continue
to be available for discussions".
Jobson sent "amended proposals" to Sappingfield on December 4, 1980
which Sappingfield received on December 8. Those proposals were as
follows:
"1. N.T.E.U. hereby requests to negotiate the procedure of
assigning desks to Appeals Officers, auditors, aids, etc., within
the space so allocated. For example, the desks and corresponding
space should be assigned according to grade and seniority.
"2. N.T.E.U. hereby requests to negotiate the procedures of
the move and until such procedures are negotiated, the move should
not be implemented. For example, how should an employee handle
his/her workload while the move is in process?
"3. N.T.E.U. hereby requests to negotiate the adverse effect
of the limited space on the employee and his/her workload. For
example, due to the limited number of conference rooms, the
employee's case load should be limited, or if not limited, his/her
performance evaluation should account for limited access to
conference rooms.
"4. N.T.E.U. hereby requests to negotiate the adverse effect
of the limited space on the employee and his/her potential
liability under the Privacy Act. For example, meetings should be
held to advise the employees of the Privacy Act and its effect on
them."
In her letter, Jobson "reserved" the right to present further items
for negotiation stating as a reason that no informational meeting
regarding the move had been held with the Union and suggesting that
until such time, the move should not be implemented.
While the relocation to the Mart Building was envisaged sometime in
September 1980, management had been attempting to negotiate with GSA to
procure other quarters. The Mart Building was, as stated above, to be a
temporary location until a more suitable site could be obtained.
Although the relocation of the Appeals Office was originally scheduled
for October 14, IRS attempted to delay the move in hope that a lease for
better quarters would be obtained. However, the Courts construction
project had begun, and faced with the possibility of laying the
Government open to substantial monetary liability for impeding the
courts project, and under continuing pressure from GSA to vacate and
relocate, IRS agreed to occupy the Mart Building. In the opinion of
Respondent's Regional Chief of Facilities Management, the move could not
have been delayed more than another week. /15/ Since the move was to be
only temporary, Respondent attempted to minimize the cost of renovations
but, nevertheless, could have made expenditures on such items as
correcting safety hazards.
The Union received no official notification of the exact date of the
relocation. However, on Wednesday, December 3, Appeals employees were
provided packing boxes but it was not until Friday, December 5 that it
became apparent to the employees that the move to the Mart Building was
an absolute certainty. The move was physically accomplished on that
weekend-- December 6 and 7.
In general, the condition of the Mart Building is far below normal
office standards. The building is generally unclean and largely
unoccupied. The elevators are undependable, frequently opening without
apparent reason onto the darkness of vacant floors.
The physical working conditions at the Mart Building are
substantially inferior to those found at the Market Street location. At
the new location IRS does not have individual offices for each Appeals
Officer. Rather, Appeals Officers are located in booths which are
separated by metal dividers. The dividers begin one foot above the
floor and extend six feet high. Three of the booths face into the
typing pool. The new office does not have a separate library. The
library is located in a hallway where there are no tables or chairs
available. The Eighth Circuit library is now three blocks away.
Appeals Aides are no longer located outside Appeals Officer offices;
they are now in a central area and are generally less accessible to the
Appeals Officers. The area has telephone wires hanging from the ceiling
and extension cords criss-crossing the floor.
Appeals Officers find that dictation is more difficult because,
absent the carpeting, drapes, and enclosed offices which acted as
soundproofing devices at the former location, the dictating equipment
picks up conversations from persons in neighboring booths and other
background noise. As a result, one Appeals Officer testified that he
had resorted to handwriting his statements. Because the Appeals
Officers' booths are small and lack privacy, conferences must be held in
conference rooms. One of the three conference rooms has a cold air
return through which a person in the hall can hear a conference held in
that room. If, during a conference, an Appeals Officer needs to make
photocopies, an Appeals Aide can no longer be signaled by buzzer. The
Appeals Officer must leave the room with any confidential files and find
an Aide to do the copying.
The change in working conditions has had a significant effect on
employees. Employees, including typists, have experienced an increase
in the amount of time it takes to dispose of cases. James Milgrim, an
Appeals Officer, testified that the quality of his work has declined
since the move and that he had to take more work home with him in order
to meet time deadlines. Indeed, the entire office received a memorandum
from IRS about the failure of everyone in the office to meet their time
deadlines. Additionally, the possibility for disclosure and liability
under the Privacy Act has been increased for Appeals Officers at the new
location.
On January 5, 1981 Jobson received Sappingfield's reply to her
December 4, 1980 "amended proposals", supra. /16/ Sappingfield's letter
dated December 31, 1980, rejected the Union's proposals and maintained
that Respondent fulfilled any obligation it had to provide information
to the Union by virtue of its prior two informational meetings with
Jobson and supplying Jobson with the floor plan and a visit to the site.
Respondent suggested however, "further concerns" over the relocation
could be discussed at a Labor-Management Relations Committee meeting to
be held on January 7, 1981. With regard to Jobson's request that the
relocation be delayed, after noting that the Union's letter was not
received until December 8, the day after the move was completed,
Respondent stated that in any event it would not have been possible to
delay the move since the date was set by GSA.
As to the Union's specific proposals, Respondent contended: (1) the
assignment of desks involves a matter of technology under section
7106(b)(1) of the Statute imposing no obligation to bargain; (2) since
the move occurred over the weekend, no adverse impact was visited upon
Appeals employees; (3) matters concerning the "limited space" available
constitutes technology, the request to limit employee caseloads
interferes with management's right to assign work and is nonnegotiable
under section 7106(a)(2)(B), and methods of evaluating employees were
contained in the parties' collective bargaining agreement; and, (4)
questions of liability for disclosure under the Privacy Act encompass
internal security practices within the meaning of section 7106(a)(1) and
are, therefore, nonnegotiable.
Respondent and the Union met at a Regional Labor-Management Relations
Committee meeting in Chicago on January 7, 1981. Representing
management were Sappingfield, Raymond Gump, Acting Regional Director of
Appeals, and an individual from Facilities Management. The Union was
represented by Paul Sax, President of Chapter 95, the Union's Chief
Steward, Jobson, and a local Chicago Union steward. The meeting was
approximately three hours in length and six or seven items were on the
agenda for discussion. The last item on the agenda was the St. Louis
Appeals Office move, which took approximately 15 minutes of time. With
regard to the question of the assignment of desks to employees, Regional
management stated that it was a local problem and they did not wish to
get involved in the matter. Jobson replied that the floor plan sent to
her had the name and location of each Appeals Officer on it, so local
management concluded that each Appeals Officer had an assigned location.
Management indicated that it was not their intention to assign seating
and the matter could be negotiated by local management.
Jobson stated that the Union had a problem with the lack of
sufficient conference rooms and limited space adding to the time it took
to process cases, and conversations being overheard in adjoining rooms.
Managements response was that adjoining space was empty and they would
attempt to obtain two additional conference rooms. When Jobson brought
up the subject of cold air ducts allowing conversation and telephone
calls being overhead by others not privy to the conversation thus
creating a Privacy Act problem for employees, management's reply was
that the Appeals Office would be relocating in three months and the
problem would resolve itself at that time. Jobson also stated that a
safety hazard existed for Aides due to telephone wires hanging from the
ceiling and the number of extension wires running from the same
electrical socket. Again management response was that the problem would
be resolved when the office moved in March of 1981. /17/ The
conversation concluded, Jobson testifying, "actually, I was kind of
cutoff toward the end anyway with the whole reason being, well, we're
going to be moving in three months anyway, so what are you arguing
about?" /18/
Within a week after the January 7, 1981 meeting Jobson met with Frank
Brafman, Chief of the St. Louis Appeals Office. An office had become
available and Brafman asked Jobson if she'd like to move into it.
Jobson refused but indicated that others might be interested in it.
Brafman asked if Jobson would mind if he checked into the matter and
Jobson had no objection. Thereafter, Brafman checked with one other
employee about the office but the employee indicated he was satisfied
where he was.
The St. Louis Appeals Office is still located in the Mart Building,
no additional conference rooms were ever added, and it is currently
anticipated that the office will relocate by the first part of the
Spring of 1982.
Discussion and Conclusions
The Complaint alleges that on November 25 and December 31, 1980, and
thereafter, Respondent failed and refused to negotiate with the Union
and thereby violated section 7116(a)(1) and (5) of the Statute by
refusing to enter into negotiations on the impact and implementation of
Respondent's decision to relocate the St. Louis Appeals Office. /19/
It is well settled in cases decided under Executive Order 11491, as
amended, the predecessor to the Statute herein, that an agency decision
to relocate its employees is nonnegotiable. Occupational Safety and
Health Review Commission, 8 A/SLMR 399 (1979); Social Security
Administration, Bureau of Hearings and Appeals, 7 A/SLMR 338 (1977);
U.S. Department of Transportation, Federal Highway Administration,
Vancouver, Washington, 6 A/SLMR 88 (1976). It is equally well settled
and supported in the cited cases that while the decision to relocate
employees is nonnegotiable, an agency must nevertheless bargain with the
exclusive collective bargaining representative on the procedures
utilized in effectuating the decision and on the impact such decision
would have on employees adversely affected by such action. Indeed,
while under section 7106 of the Statute an agency has the privilege to
refuse to bargain with an exclusive representative? . . . on the
technology, methods, and means of performing work", section 7106(b)(2)
and (3) specifically provides for agency negotiation with the exclusive
representatives on "(2) procedures which management officials of the
agency will observe in exercising . . . its management rights . . . ;
or "(3) appropriate arrangements for employees adversely affected by the
exercise . . . of such rights . . . "
The September 30 Proposals
With regard to the case herein, by letter dated September 30, 1980
which IRS responded to on November 25, 1980, the Union submitted
bargaining proposals concerning (1) the number and location of
conference rooms; (2) removal of a wall in an Appeals Officer's office;
(3) providing a different office to an Appeals Officer; (4) the
placement and accommodations for privacy gives to a receptionist; (5)
providing employees with adequate space so that walking sideways in
offices would not be necessary; (6) relocating the library; (7)
avoiding safety hazards occasioned by dangling wires; (8) cleaning
painting and repairing the site; and (9) advising employees on security
measures to prevent disclosure violations of the Privacy Act and
management's responsibility in this regard.
Respondent contends that no obligation to bargain attaches to these
proposals in that they involved either the technology, methods, or means
of performing work; internal security practices; the assignment of
employees; matters beyond its administrative control; or was a matter
which was in the process of being corrected.
The leading cases to date treating the negotiability of proposals
regarding office space are National Treasury Employees Union Chapter No.
010 and Internal Revenue Service, Chicago District, 4 FLRC 126 (1976)
and National Treasury Employees Union and Chapter 22, National Treasury
Employees Union and United States Department of the Treasury, Internal
Revenue Service, Philadelphia District, 4 FLRC 598 (1976). Although
these cases were decided under Executive Order 11491, as amended, the
Statute specifically provides that such decisions " . . . shall remain
in full force and effect until revised or revoked by the President, or
unless superseded by specific provisions . . . (of the Statute) . . . or
by regulations or decisions issued pursuant to . . . (the Statute).
/20/ The specific language of the Statute with regard to the extent of a
union's right to negotiate on privileged managerial decisions under the
Statute has not changed relative to the rights at issue herein and no
party has cited to me any decision of the Authority which indicates that
the holdings in the above cases have been superseded. /21/ Accordingly,
I consider myself bound by such decisions until the Authority itself
addresses the matter and modifies the holdings therein.
National Treasury Employees Union Chapter No. 010 (NTEU Chapter No.
010) treated, inter alia, specific union proposals for confidential
office space; the location and number of conference rooms; providing
employees with specific equipment; situating employees in a manner
causing them the least distraction from traffic; and maintaining
adequate lighting in work areas to assure employee health and safety.
/22/ The Federal Labor Relations Council (the Council), in that case
held that proposals concerning the particular design and use of agency
workspace constitutes a request to negotiate about the technology of
performing work. Accordingly, the Council declared the agency had no
obligation to bargain on the union's proposals for confidential offices
and the location and number of conference rooms. The Council further
found the agency was not required to bargain on proposals concerning the
extent to which specific equipment would or would not be provided
employees since these also concerned matters of technology.
On the other hand, the Council found the union's proposal that
employees be situated in a manner which would cause them the least
distraction from traffic to be negotiable, rejecting the agency's claims
that this proposal affects workflow and therefore constituted a matter
of technology and methods of operation. The Council concluded that the
union's proposal specifies only what standard shall be applied in
determining the placement of employees desks (the least distraction from
traffic) not how this standard is to be achieved by the agency, thus the
agency's "method" of operation was not infringed upon. When considering
the agency's "technology" position, the Council declared that the
agency's control over technology was not restricted since the proposal
went only to the implementation of that technology. The Council
explained that " . . . nothing in this proposal would necessarily impede
the agency's adoption of an "open-space" approach to office design, for
the proposal requires only that whatever approach the agency may adopt
be implemented in a manner which will cause employees "the least
distraction from the traffic." The Council further noted that it was not
shown that the proposal" . . . would detract from the effectiveness, in
achieving the purpose for which it is intended, of any particular work
technology which the agency has adopted."
The Council, in NTEU Chapter No. 010 also found negotiable the
union's proposal requiring the agency to maintain adequate lighting in
work areas to assure the health and safety of employees, rejecting the
agency's claim that the proposal was nonnegotiable under GSA Federal
Property Management Regulations. The Council sought from GSA an
interpretation of these regulations and received a response which
stated, in relevant part:
"Thus, to the extent the proposal requires that the adequacy of
lighting be measured by standards other than those established by
GSA regulations, it would conflict with such regulations.
However, since the language of the proposal merely requires the
maintenance of "adequate lighting," and neither precludes nor
requires the application of any particular standard of lighting
adequacy, it does not, on its fact, require application of
standards other than those set by GSA regulations.
"Further, since the provision of adequate lighting is, as
already mentioned, the statutory responsibility of GSA, insofar as
the proposal would require the agency to assume responsibility for
the actual physical maintenance of lighting it would conflict with
GSA regulations. However, if the proposal does not require the
agency to assume such physical maintenance responsibility, but,
rather, merely to assure that the GSA prescribed standards of
lighting are maintained, by reporting any observed deviation to
the appropriate GSA official (Building Manager), the proposal does
not conflict with GSA regulations in this regard."
After considering the foregoing GSA response the Council rejected the
agency's contention and found the union's proposal for "adequate
lighting" to be negotiable.
Based upon my evaluation of the Union's proposals in the case herein,
and applying the principles enunciated by the Council as set forth above
in NTEU Chapter No. 010, I conclude that Respondent was under no
obligation to bargain on the Union's proposals concerning the number and
location of conference rooms, the removal of a wall in a Appeals
Officer's office, providing a different office to an Appeals Officer,
the placement and accommodations for privacy of a receptionist, /23/ and
the relocation of the library. Thus, as in NTEU Chapter No. 010, these
proposals clearly concern the particular design and use of Respondent's
workspace and accordingly, are integrally related to the technology of
performing the work of the agency.
Similarly, I find that the Union's proposal for cleaning, painting
and repairing the Mart Building is nonnegotiable. While the matter is
not free of doubt, it would appear that the proposal would require
Respondent to specifically engage in the physical maintenance of the
site. Respondent's reply to this Union proposal was that since
housekeeping was the responsibility of GSA it was beyond the
administrative control of IRS. As stated above in NTEU Chapter No. 010,
the Council seems to have concluded for physical maintenance and that
maintenance was properly the responsibility of GSA, the matter would be
nonnegotiable.
In the case herein it has not been shown that Respondent's contention
and that maintenance responsibility was that of GSA was incorrect. In
my view, in the circumstances herein the General Counsel had the burden
of disproving Respondent's contention. That burden has not been met.
Accordingly, I conclude this proposal to be nonnegotiable.
Further, I conclude that Respondent was under no obligation to
negotiate on the Union's proposal that employees be provided adequate
personal space and for their furniture and equipment so that walking
sideways between desks and walls would not be necessary. In American
Federation of Government Employees, Local 3632 and Corpus Christi Army
Depot, 6 FLRA 1072 (1978) at 1095-1097, the Council considered the
negotiability of a Union proposal that the employer create " . . . a
professional type condition for the creation and maintenance of a
professional spirit" and specified that such would include " . . .
office facilities, professional tools and equipment, working space,
helpers (in the form of technicians, equipment specialists, aides,
etc.), clerical help, reference materials, availability of mechanical
office equipment and pleasant surroundings." The Council concluded that
since the proposal would require the agency to provide bargaining unit
employees with the assistance of particular types of positions of
employees the proposal requires the agency to bargain over staffing
patterns, a matter over which no obligation to bargain attaches. The
Council mentioned its holding in NTEU Chapter No. 010 that proposals
concerning the use of particular equipment or the particular design and
use of workspace were matters of "technology" and then found that:
"while the union proposal . . . does not require the agency to utilize a
specific piece of equipment or particular workplace design, it would
subject agency decisions on these matters to union challenge and
constraints under the contract." The Council concluded that the proposal
involved matters with respect to the technology of performing the
Agency's work and accordingly, was excepted from the obligation to
bargain under section 11(b) of the Executive Order.
Thus, it appears that while the Council did not consider a proposal
to bargain on "working space" and "surroundings" as such to directly
mean "workplace design", the Council found that to require an agency to
bargain on these matters, among other subjects considered, "would
subject agency decisions on these matters to union challenge and
constraint . . ." and therefore would involve matters with respect to
the technology of performing the agency's work. The adequacy or size of
employees workplace would to a substantial extent challenge and
constrain Respondent in its decisions on office layout and design if not
directly affect "workplace design." Accordingly, I find that the Union's
proposal regarding adequate space was integrally related to the
technology of performing work and Respondent therefore was under no
obligation to bargain with the Union thereon. /24/
However, I find the Union's proposal that exposed wires should not be
left dangling from ceilings thereby creating a safety hazard, to be
negotiable under the Statute. Respondent's reply to this proposal
consisted of a comment that management's commitment to safety had been
negotiated in Article 20 of the parties collective bargaining agreement.
I find that Article 20, supra, is not dispositive of the issue of
negotiability and the reference to Article 20 was not responsive to the
proposal. The provisions of Article 20 are general in nature and there
is no indication in the agreement that Article 20 was intended to
exhaust the Union's right to bargain on matters of safety.
In its reply to this proposal Respondent also stated, for the Union's
"information", that the installation of power poles and wall mounted
telephone would eliminate the hazard. However, the evidence reveals
that there still exists dangling telephone wire and electric extension
cords running across the floor at the Mart Building.
The proposal essentially provided that the technology of providing
electricity and communications adopted by Respondent be implemented in a
manner consistent with the safety of employees. Since it was not
privileged under the collective bargaining agreement or by operation of
the Statute to refuse to bargain with the Union I conclude that
Respondent violated section 7116(a)(1) and (5) by its refusal to
negotiate with the Union on the safety hazard proposal. /25/
Regarding the Union's proposal dealing with the security requirements
of the Privacy Act, the proposal actually encompasses two independent
suggestions; one treating management advising employees on security
measures and the other dealing with management assuming responsibility
for violation of the Privacy Act. I find Respondent was not privileged
to refuse to negotiate with the Union concerning its proposal to have
employees properly advised as to what security measures should be taken
to prevent unauthorized disclosures at the Mart Building. Respondent
maintains that the proposal was not negotiable because it "concerns"
internal security practices. The contention is rejected. While the
proposal doubtless "concerns" internal security practices, it does not
seek to decide or even suggest what internal security practices should
be adopted. Rather, the Union gives examples of conditions at the Mart
Building which leads it to conclude that the space, in general, falls
short of the security requirements of the Privacy Act and proposes
merely that employees be advised, obviously by management, what
particular security measures should be taken at the new location so
employees would not be involved in unauthorized disclosures. Thus, I
find that the Union's proposal in this regard involved "appropriate
arrangements for employees adversely affected . . . " by the relocation
within the meaning of section 7106(b)(2) of the Statute. Accordingly, I
conclude Respondent, by its refusal to negotiate with the Union on this
proposal, violated section 7116(a)(1) and (5) of the Statute.
In its brief Respondent contends that the relocation did not result
in a change in working conditions in the area of security and
disclosure. I disagree. When the relocation occurred the circumstances
whereby security and disclosure matters could arise changed. Granted,
the Privacy Act and disclosure laws remained the same. However, how the
Privacy Act would be applied in these new circumstances did change and
such change constituted a change in working conditions giving rise to an
obligation to negotiate as stated above.
I also reject Respondent's contention that its refusal to bargain
over the above proposal was de minimis. Disclosure can result in
substantial adverse consequences to an employee and answers given to
individual employees by a Disclosure Officer and reference to an
Internal Revenue Manual Handbook does not, in my view, constitute valid
grounds for Respondent to fail to consider and negotiate with the Union
or its proposal to have the employer advise employees as to how
disclosure prohibitions would apply in the new working environment.
However, to the extent the Union proposed that IRS should assume
responsibility for violations of the Privacy Act, I find and conclude
that the effect of such proposal would negate management's right to
determine its internal security practices and therefore, the proposal is
nonnegotiable.
The December 4 Proposal
Turning now to the Union's proposals contained in its December 4,
1980 letter, I find the Union's request to negotiate on the procedures
of assigning desks and corresponding space to employees to be
negotiable. The proposal does not go to the design of the offices since
Respondent is free to lay out the offices in the manner it deemed
desirable. The specific office areas would still be occupied by the
Appeals Officers, Auditors and Aides (secretaries) or whatever employees
Respondent wished to have occupy the particular space. The location and
"use" of the workspace would still be within the control of management,
except that employees would be able to choose their specific locations
within the areas set out for Appeals Officers, Auditors, and Aides,
based upon the grade and seniority of employees within those categories.
Thus, the offices set aside for Appeals Officers would still be used by
Appeals Officers but the choice of those offices would be determined by
the grade and seniority of Appeals Officers. Similarly, the office
spaces set aside for Auditors and Aides would stay as determined by
management, except the specific location for individual Auditors and
Aides would be assigned pursuant to grade and seniority in each of those
classifications. Further, there has been no showing that the processing
of Respondent's work is so integrated or so organized as to require
specific individuals be located in particular work spaces. Accordingly,
as with the proposal in NTEU Chapter No. 010 dealing with situating
employees so as to cause the least distraction from traffic, I find that
Respondent's right to determine the technology or method of performing
work is not infringed upon by this proposal and therefore, Respondent
violated section 7116(a)(1) and (5) of its refusal to negotiate with the
Union on this proposal.
While virtually any union's proposal could be said to "subject an
agency decision to union challenge and constraint" to some degree, I do
not find the language of American Federation of Government Employees,
Local 3632 and Corpus Christi Army Depot, supra, to preclude negotiation
on any union proposal which subjects an agency decision to union
challenge and constraint, however slight. Rather, in my view the
proposal must be analyzed and evaluated to ascertain whether the
"challenge and constraint" is sufficient to significantly impinge on
management's statutory rights so as to constitute a substantial
challenge or constraint on that right. As explained above, I find no
significant challenge or constraint to management rights regarding the
Union proposals concerning the assignment of desks.
With regard to the Union's request to negotiate on the procedures of
the move, i.e. how workloads would be handled while the move is in
process, I find the proposal to have been made too late to constitute a
valid proposal warranting consideration before the relocation occurred.
As part of the proposal the Union specifically requested that the move
not be implemented until negotiations on procedures took place. The
Union knew in early September 1980 that a move was envisioned; sent a
list of proposals to Respondent on September 30, 1980 without including
a proposal relative to this matter; and received notification on
November 28, 1980 that the move would occur in early December. However,
it was not until December 4, the day when packing boxes arrived at the
Market Street location, that the Union sent the letter which contained
this request. The date of mailing virtually assured that receipt of the
proposal by management would not occur before the relocation took place
on December 6 and 7. Thus, the Union, although it knew of the move for
a substantial period of time, waited until the eleventh hour to submit a
proposal which required postponement of the relocation. In these
particular circumstances I conclude that the Union, in waiting until the
move was imminent, was remiss in submitting a proposal which required
negotiations before the move was implemented. Accordingly, without
reaching the negotiability aspects of this proposal, I find no merit to
the General Counsel's contention that Respondent violated the Statute by
its conduct regarding this matter.
As to the Union's request to negotiate on the adverse effect of
limited work space on employees' workloads, I find the matter to be
negotiable. The proposal stated that at issue was employees'
performance evaluations since the Mart Building provided different
working conditions, e.g. less conference rooms were now available.
Although the proposal gave as an example limiting employee workloads,
the proposal clearly was for negotiations on how the new working
conditions might affect employees' performance evaluations so long as
those conditions were in existence. Respondent was obviously free to
assign whatever amount of work it chose and the Union was seeking only
to negotiate on the adverse effect of that assignment, given the current
conditions.
The Council's holding in NTEU Chapter No. 22, supra, at 601, is
particularly applicable herein. In that case, after concluding that the
union's proposals concerned the technology of performing the agency's
work, the Council nevertheless stated:
"To avoid any possible misunderstanding, we must strongly
emphasize that our decision herein does not mean that conditions
deriving from the agency's implementation of a chosen technology
(i.e., the impact of such technology) would be excepted from the
obligation to bargain by section 11(b) of the Order . . . For
example, as regards the instant dispute, if the union feels that
the agency's decision to adopt or not adopt a particular
technology detracts from the efficiency of unit employees, and
thereby adversely affects those employees' performance
evaluations, proposals directed at amelioration of the impact of
that decision rather than at the technology itself would be
plainly negotiable." /26/
Accordingly, I conclude that by its refusal to negotiate with the
Union concerning employee performance evaluations as affected by the
working environment at the Mart Building, Respondent violated section
7116(a)(1) and (5) of the Statute. /27/
Lastly, the Union's request to negotiate as to the adverse effect of
the limited space on the employee and the potential liability under the
Privacy Act was essentially the same request made by the Union on
September 30, 1980 and refused by Respondent on November 25. I have
previously treated this matter and for the reasons stated above I find
and conclude that Respondent, by its refusal to negotiate on this
proposal, to the extent the proposal was limited to management advising
employees on the Privacy Act and its effect upon them, violated section
7116(a)(1) and (5) of the Statute.
Other Issues
Respondent contends that its obligation to bargain ended with the
Union's proposals of September 30, 1980. Respondent avers that it had
no obligation to solicit or consider additional proposals after the
Union was given an opportunity to submit proper proposals and failed to
do so.
Respondent's contention is rejected. I find nothing in the Statute
or decided cases which supports Respondent's position. Nor do I
perceive any cogent reason why a Union's right to request negotiations
should be extinguished simply because some earlier proposals are found
nonnegotiable. In my view, as long as a union submits a request to
negotiate on valid matters in a timely fashion, an agency is obligated
to enter into the collective bargaining process in good faith. In the
instant case even after the relocation occurred legitimate subject
matter existed for negotiation concerning procedures and arrangements
regarding this relocation. Accordingly, Respondent was obliged to
proceed to negotiations upon the Union's demand to the extent required
under the Statute, regardless if nonnegotiable demands were previously
presented.
Respondent also takes the position that assuming Respondent failed to
negotiate with the Union, such failure was "cured" by subsequent
negotiations. Respondent relies upon the "negotiations" between the
parties which occurred on January 7, 1971, supra, and the subsequent
conversation Union Steward Jobson had with Frank Brafman, Chief of the
St. Louis Appeals Office.
I likewise reject this contention. With regard to the assignment of
desks, Respondent failed to negotiate with the Union for a full month.
By January 7 employees were obviously settled into their specific
worksites and it is reasonable to assume that the degree of meaningful
negotiations would be substantially diminished due to the employee's
desire to avoid the attendant disruption which would have arisen from a
reassignment of work space. In any event, a belated offer to negotiate
does not serve to remedy a prior refusal and failure to negotiate. /28/
Further, even if such an offer might serve to affect the nature of the
remedy which should be imposed, in the case herein the relocation was
only temporary and a permanent relocation is anticipated. Accordingly,
the refusal to negotiate can be remedied during the future change of
location which is expected to occur in the Spring of 1982.
The other matters considered during the January meeting were
essentially deferred by management since another relocation was
envisioned which, Respondent suggested, would resolve the problems.
However, the situation remained as it was before the meeting. Indeed,
while adding conference rooms might have allayed the Union's concern
regarding performance evaluations since the time to process cases might
have been affected, no additional conference space was ever obtained.
In these circumstances I conclude that the unfair labor practice conduct
found above was not "cured" by the parties subsequent actions.
Accordingly, in view of the entire foregoing and having concluded
that Respondent has violated section 7116(a)(1) and (5) of the Statute,
I recommend the Authority issue the following:
Order
Pursuant to section 2423.20 of the Federal Labor Relations
Authority's regulations and section 7118 of the Statute, it is hereby
ordered that the Department of the Treasury, Internal Revenue Service,
Midwest Regional Office, Chicago, Illinois, shall:
1. Cease and desist from:
(a) Failing and refusing to negotiate, consonant with
obligations imposed by the Statute, with National Treasury
Employees Union and its agent National Treasury Employees Union,
Chapter 95, the employees' exclusive collective bargaining
representative, on the Union's Mart Building proposals concerning
safety hazards; advising employees on security measures to
prevent unauthorized disclosures; procedures for assigning desk
space to employees; and the impact of the changed working
environment at the Mart Building on employee performance
evaluations.
(b) Instituting any future change in the location of the St.
Louis Appeals Office worksite without first notifying National
Treasury Employees Union, Chapter 95, agent for National Treasury
Employees Union, the employees' exclusive collective bargaining
representative, and affording it an opportunity to negotiate,
consonant with obligations imposed by the Statute, on the
procedures which management officials will observe in implementing
the relocation and appropriate arrangements for employees
adversely affected by the relocation of the worksite.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Labor-Management Relations Statute:
(a) Negotiate with National Treasury Employees Union, and its
agent National Treasury Employees Union, Chapter 95, the
employees' exclusive collective bargaining representative, on the
Union's Mart Building proposals concerning safety hazards,
advising employees on security measures to prevent unauthorized
disclosures; procedures for assigning desk space to employees;
and the impact of the changed working environment at the Mart
Building on employee performance evaluations.
(b) With regard to any future relocation of the St. Louis
Appeals Office worksite, notify National Treasury Employees Union
Chapter 95, the agent for the employees' exclusive collective
bargaining representative, and afford it an opportunity to
negotiate, consonant with obligations imposed by the Statute, on
the procedures which management officials will observe in
implementing the relocation and appropriate arrangements for the
employees adversely affected by the relocation of the worksite.
(c) Post at its St. Louis, Missouri Appeals Office, 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 Regional Commissioner for the Midwest
Region, and shall be posted and maintained by him for 60
consecutive days thereafter, in conspicuous places, including
bulletin boards and other places where notices to employees are
customarily posted. The Regional Commissioner shall take
reasonable steps to insure that such notices are not altered,
defaced, or covered by any other material.
(d) 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.
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: December 11, 1981
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 fail and refuse to negotiate, consonant with obligations
imposed by the Statute, with National Treasury Employees Union, and its
agent, National Treasury Employees Union, Chapter 95, the employees'
exclusive collective bargaining representative, on the Union's Mart
Building proposals concerning safety hazards; advising employees on
security measures to prevent unauthorized disclosures; procedures for
assigning desk space to employees; and the impact of the changed
working environment at the Mart Building on employee performance
evaluations.
WE WILL NOT institute any future change in the location of the St.
Louis Appeals Office worksite without first notifying National Treasury
Employees Union, Chapter 95, agent for National Treasury Employees
Union, the employees' exclusive collective bargaining representative,
and affording it an opportunity to negotiate, consonant with obligations
imposed by the Statute, on the procedures which management officials
will observe in implementing the relocation and appropriate arrangements
for employees adversely affected by the relocation of the worksite.
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
Statute.
WE WILL negotiate with National Treasury Employees Union and its
agent National Treasury Employees Union Chapter 95, the employees'
exclusive collective bargaining representative, on the Union's Mart
Building proposals concerning safety hazards; advising employees on
security measures to prevent unauthorized disclosures; procedures for
assigning desk space to employees; and the impact of the changed
working environment at the Mart Building on employee performance
evaluations.
(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 question concerning this Notice, or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Federal Labor Relations Authority, Region 5, whose
address is: Suite A-1359, 175 West Jackson Boulevard, Chicago, Illinois
60604, and whose telephone number is (312) 886-3468.
--------------- FOOTNOTES$ ---------------
/1/ No further move occurred in March 1981 or at any time prior to
the holding of the hearing in September 1981.
/2/ Section 7116(a)(1) and (5) of the Statute 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/ Section 7106(b)(1) of the Statute provides:
(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(.)
/4/ Section 7106(a)(2)(A) and (B) 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--
* * * *
(2) in accordance with applicable laws--
(A) to hire, assign, direct, layoff, and retain employees in
the agency, or to suspend, remove, reduce in grade or pay, or take
other disciplinary action against such employees;
(B) to assign work, to make determinations with respect to
contracting out, and to determine the personnel by which agency
operations shall be conducted(.)
/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 mission, budget, organization, number of
employees, and internal security practices of the agency(.)
/6/ At this time Sappingfield thought the move was likely to occur
around October 17.
/7/ The delay in receipt by Sappingfield was apparently occasioned by
Jobson failing to properly address the letter.
/8/ The letter was delivered to Jobson's office on November 28.
/9/ Section 7106(b)(1) provides: (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 . . . "
/10/ Section 7106(a)(1) provides: "(a) Subject to subsection (b) of
this section, nothing in this chapter shall effect the authority of any
management official of any agency-- (1) to determine the . . . internal
security practices of the agency . . . "
/11/ See section 7106(b)(1), supra.
/12/ Section 7106(a)(2)(A) gives management the unfettered right "to
hire, assign, direct, layoff and retain employees in the agency . . . "
/13/ Article 3, Section 1A of the agreement provides: "The Employer
and the Union will recognize and respect the dignity of employees in the
formulation and implementation of personnel policies and practices."
/14/ Article 20 contains various health and safety provisions
including the designation of a safety representative and establishment
of Safety Advisory Committee within each Regional Office. More
particularly, Section 1 of Article 20 provides: "The Employer will, to
the extent of its authority, provide and maintain safe working
conditions for all employees . . . The Employer will initiate prompt
and appropriate action to correct any unsafe working condition which is
reported or observed by the employer . . . "
/15/ The record does not disclose precisely when Respondent decided
upon the exact date of the move.
/16/ Prior to forwarding his response dated December 31, 1980,
Sappingfield, as previously, sent copies of the Union's "amended
proposals" to IRS' Regional and National labor relations staffs for a
negotiability determination.
/17/ Jobson further complained about the short period of time she was
given to submit proposals in September whereas Sappingfield took a
considerable length of time to provide his response to her.
/18/ Jobson was the only witness to testify concerning this meeting.
/19/ Counsel for the Union contends in his brief that Respondent's
conduct, including the lengthy delays in responding to the Union's
proposals, demonstrates a lack of good faith in dealing with the Union.
I do not address the issue of delay and lack of good faith inasmuch as
this allegation was not contained in the Complaint.
/20/ Section 7135(b).
/21/ I find unpersuasive Counsel for General Counsel's contention
that certain remarks of Congressman William D. Ford should be given
controlling weight herein. The remarks were made on October 14, 1978
and concerned the interpretation of the bargaining rights and
obligations set forth in section 7106 of the Statute. (Legislative
History of the Federal Service Labor-Management Relations Statute, Title
VII of the Civil Service Reform Act of 1978, 96th Congress, 1st Session,
Committee Print No. 96-7, (November 19, 1979) at 993-994). Since
Congressman Ford's statements relied on by Counsel for the General
Counsel were made after enactment of the Statute, they should be
construed only to represent the personal views of that legislator and
not an expression of Congressional intents. National Woodwork
Manufacturers Association v. N.L.R.B., 386 U.S. 612, 87 S.Ct. 1240
(1967), n. 34 at 1265.
/22/ The union's proposals and Council's rulings in National Treasury
Employees Union and Chapter 22 (NTEU and Chapter 22) were similar to
those in the NTEU Chapter No. 010.
/23/ In any event it appears that since the placement of a
receptionist near the office entrance was a matter inadvertently omitted
from the floor plans given to Jobson and after being informed of this
fact the Union failed to raise the subject again, I conclude the matter
was resolved to the Union's satisfaction and no longer an issue.
/24/ But see American Federation of Government Employees, AFL-CIO,
and Air Force Logistics Command, Wright Patterson Air Force Base, Ohio,
2 FLRA No. 77 (1980) holding that an agency was obligated to negotiate
with a union on a proposal that the agency provide adequate space and
facilities for a day care center, rejecting the agency's contentions
that the proposal violated its right to determine its budget under
section 7106(a)(1) of the Statute.
/25/ Cf. AFGE Local 2595 and Immigration and Naturalization Service,
U.S. Border Patrol, Yuma Sector (Yuma, Arizona), 1 FLRC 72 (1971), at
74.
/26/ See also National Treasury Employees Union, Chapter 49 and
Internal Revenue Service, Indianapolis District, 6 FLRC 1274 (1978), at
1278. fn. 6.
/27/ I find nothing in Article 9 of the parties' collective
bargaining agreement relative to providing an employee the right to
discuss an evaluation with the employer which would privilege
Respondent's refusal to negotiate with the Union on this proposal which
was occasioned by a change in Respondent's operations.
/28/ Department of the Air Force, 47th Flying Training Wing, Laughlin
Air Force Base, Texas, 2 FLRA No. 24 (1979).