[ v27 p322 ]
27:0322(45)CA
The decision of the Authority follows:
27 FLRA NO. 45
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
(WASHINGTON, D.C.); and INTERNAL
REVENUE SERVICE HARTFORD DISTRICT
(HARTFORD, CONNECTICUT)
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION
Charging Party
Case No. 1-CA-60104
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge. The Respondent filed exceptions to the decision and the General Counsel filed an opposition to those exceptions and a cross-exception. The issue is whether the Respondent violated section 7116 (a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by unilaterally discontinuing certain break room conveniences without providing the Charging Party (the Union) with notice and an opportunity to bargain.
II. Background
In the summer of 1984, the IRS Hartford District Office notified the Union of its intention to move its Wethersfield Post of Duty (POD) to a new location. The Union submitted proposals concerning the impact and implementation of the move, which resulted in a "collaborative agreement" providing, among other things, for a break room. Upon relocation in October of 1984, the break room was established.
Initially, the break room had two small refrigerators, a sink and four coffee pots. Beverages were available for purchase, and a price list was posted. Subsequently, under conditions described in detail by the Judge, a microwave oven, snacks and a larger refrigerator were added. The Judge found that top local management knew about and agreed to the microwave, snacks and price lists, and the larger refrigerator. In October 1985, the Respondent directed removal of the microwave oven, the larger refrigerator, and all snacks and signs from the break room.
III. Administrative Law Judge's Decision
The Judge first disposed of a procedural issue concerning the General Counsel's motion to amend the complaint. The General Counsel sought to incorporate into the complaint an amended charge that was filed after the complaint was issued. While the Judge granted the notion to amend the complaint to reflect the fact that an amended charge had been filed, he found that the original charge was sufficient to support the allegation in the complaint.
As to the merits, the Judge concluded that the Respondent's unilateral conduct in changing existing conditions of employment without notifying the Union and affording it an opportunity to bargain about the change or its impact and implementation violated section 7116 (a)(1) and (5) of the Statute. In reaching that conclusion, the Judge noted that it was undisputed that the Respondent terminated the break room conveniences, including the microwave oven, the large refrigerator, snack foods and signs with price lists, without notice to the Union or an opportunity to bargain. He also found, based on the facts in the case, that the refrigerator had become a condition of employment by express agreement by the Respondent and that the other items had ripened into conditions of employment because of the time they were in place, and because of their open, obvious and daily use.
To remedy the unfair labor practice, the Judge concluded that a status quo remedy was appropriate. He therefore recommended that the Respondent be ordered to cease and desist from the unfair labor practices, and to permit the employees to put a microwave oven and large refrigerator back into the break room, and to sell snacks and post prices in the break room. He also recommended that the Respondent be ordered to provide notice of any plan to change employee access to microwave ovens and large refrigerators and practices concerning the sale of snacks and the posting of price lists in the break room, and upon request to bargain on the change, as well as appropriate arrangements and procedures.
IV. Positions of the Parties
The Respondent, noting the Judge declined to base the complaint on the amended charge because it was filed after the issuance of the complaint, argues that the complaint should have been dismissed because the original charge, of which it is based, was insufficient to support the allegations of the complaint. The Respondent also excepts to several of the Judge's factual findings and legal conclusions.
The General Counsel argues in support of the Judge's finding that the original charge was sufficient to support the allegations of the complaint, as well as his other conclusions. However, the General Counsel excepts to the Judge's remarks concerning amendment of a charge after the filing of a complaint.
V. Analysis and Conclusions
As to the procedural issue, we agree with the Judge, for the reasons he detailed, that the original charge was sufficiently related to the allegations of the complaint to support the complaint. In view of that conclusion, it is unnecessary for us to pass on the Judge's further remarks concerning the amendment of charges and complaints.
On the merits, we adopt the Judge's conclusion that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally changing existing conditions of employment without affording the Union the opportunity to negotiate about the change or its impact and implementation. However, we differ with the Judge's analysis in certain respects.
The Judge found that certain items had "ripened" into conditions of employment by past practice, or had become conditions of employment by agreement of the parties. A matter does not become a condition of employment through past practice or the parties' agreement. Rather, an independent analysis of whether a matter is a condition of employment at the time a dispute arises is necessary. See Veterans Administration and Veterans Administration Medical Center, Lyon, New Jersey, 24 FLRA No. 8 (1986). However, if a matter is a condition of employment within the meaning of section 7103 (a)(14) of the Statute and, therefore, within the duty to bargain, then it must be determined what the particular bargaining obligations of an agency are in each set of circumstances. Where a condition of employment has become established for particular bargaining unit employees through past practice or agreement of the parties then changes may not be made by the agency involved without fulfilling its bargaining obligations.
In this case, we find that the break room conveniences were conditions of employment within the meaning of section 7103 (a)(14) of the Statute. See United States Department of the Treasury, Internal Revenue Service, Dallas District 19 FLRA 979 (1985); American Federation of Government Employees, Social Security Local 3231, AFL - CIO and Department of Health and Human Services, Social Security Administration. 16 FLRA 47 (1984); and Library of Congress, 15 FLRA 589 (1984). We further find, as did the Judge, that the parties had established certain practices with regard to some of the break room conveniences and had reached mutual agreement as to another. As to the established practices, the record indicates that management officials contributed to the purchase of and used the microwave oven, that they were aware of the posting of price lists, that they knew of the introduction of snack food items, and that these practices were in existence for some time following the October 1984 office relocation. Additionally, these break room conveniences by practice went beyond what the parties had initially agreed to in their collaborative agreement. As for the other convenience--specifically, the refrigerator--the record established that the parties had mutually agreed to its use. 1
Based on the foregoing, we find that the Respondent's conceded unilateral termination of these break room conveniences without notifying the Union and affording it an opportunity to bargain over the change or its impact and implementation violated section 7116(a)(1) and (5) of the Statute.
To remedy the unfair labor practice, we agree with the Judge that a status quo ante remedy is appropriate.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations and Section 7118 of the Statute, it is ordered that the Department of the Treasury, Internal Revenue Service, (Washington, D.C.), and Internal Revenue Service, Hartford District, Hartford, Connecticut shall:
1. Cease and desist from:
(a) Changing established conditions of employment by directing that break room conveniences, including a microwave oven, a large refrigerator, the sale of snacks, and the posting of price lists in the Wethersfield, Connecticut Post of Duty, be terminated without first notifying the National Treasury Employees Union, the exclusive representative of a unit of our employees, and affording such representative the opportunity to bargain, concerning the change, as well as the procedures to be observed in implementing the change, and on appropriate arrangements for employees adversely affected by the change.
(b) In any like or related manner interfering with, restraining or coercing employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Permit the employees to put a microwave oven and a large refrigerator in the break room of the Wethersfield, Connecticut Post of Duty and to sell snacks and post price lists in the break room of the Wethersfield, Connecticut Post of Duty.
(b) Notify the National Treasury Employees Union, the exclusive representative of a unit of its employees, of any intended change concerning employee break room conveniences and afford such representative the opportunity to bargain concerning the change, and on appropriate arrangements for employees adversely affected by such change, and procedures to be observed in implementing such change.
(c) Post at the Wethersfield, Connecticut Post of Duty copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Such forms shall be signed by the Director, Wethersfield Post of Duty, 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 I, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
Issued, Washington, D.C. May 29, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT change established conditions of employment by directing that break room conveniences including a microwave oven, a large refrigerator, the sale of snacks and the posting of price lists in the Wethersfield, Connecticut Post of Duty, be terminated without first notifying the National Treasury Employees Union, the exclusive representative of a unit of our employees, and affording such representative the opportunity to bargain, concerning the change, as well as the procedures to be observed in implementing such change, and on appropriate arrangements for employees adversely affected by such change.
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 permit employees to put a microwave oven and a large refrigerator in the break room of the Wethersfield, Connecticut Post of Duty and to sell snacks and post price lists in the break room in the Wethersfield, Connecticut Post of Duty.
WE WILL notify the National Treasury Employees Union, the exclusive representative of a unit of our employees, of any intended change concerning break room conveniences and afford such representative the opportunity to bargain concerning such change, and on appropriate arrangements for employees adversely affected by such change, and procedures to be observed in implementing such change.
____________________________
(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, Region 1, the Federal Labor Relations Authority, whose address is: 10 Causeway Street, Room 1017, Boston, MA 02222-1046, and whose telephone number is: (617) 565-7280.
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
(WASHINGTON, D.C.); and
INTERNAL REVENUE SERVICE
HARTFORD DISTRICT
(HARTFORD, CONNECTICUT)
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION
Charging Party
Case No.: 1-CA-60104
Robert Hermann, Esquire
For the Respondent
James R. Collins, Esquire
For the General Counsel of FLRA
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et. seq., 92 stat. 1191 (herein-after referred to as the Statute) and the Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5 C.F.R. Chapter XIV, 2410 et. seq.
A charge was filed on December 26, 1985 by National Treasury Employees Union, hereinafter called NTEU, against Department of the Treasury, Internal Revenue Service, Washington, D.C.; and Internal Revenue Service, Hartford District, Hartford, Connecticut, hereinafter called Respondent and IRS, alleging that IRS violated Sections 7116(a)(1) and (5) of the Statute by unilaterally partially closing a snack bar at the Wethersfield, Connecticut POD, on or about October 1, 1985 without bargaining with NTEU. On February 21, 1986 the General Counsel of the FLRA by the Director of Region I issued a Complaint and Notice of Hearing alleging that IRS violated Section 7116(a)(1) and (5) the Statute on October 1, 1985 by unilaterally changing conditions of employment by ordering certain conveniences removed from the break room. On March 3, 1986 NTEU filed an Amended Charge alleging that on October 1, 1985 IRS "unilaterally changed an established practice and condition of employment by ordering the removal of certain conveniences from the staff break room at the Wethersfield, Connecticut POD without giving the Union notice and an opportunity to bargain concerning the change and its impact and implementation." 2 Respondent filed a timely Answer denying that it had violated the Statute and setting forth certain affirmative defenses.
A hearing in this matter was conducted before the undersigned in Hartford, Connecticut. IRS and General Counsel of the FLRA were represented and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence and to argue orally. Briefs were filed and have been fully considered.
Based on the entire record in this matter, 3 my observation of the witnesses and their demeanor, and my evaluation of the record I make the following:
Findings of Fact
At all times material herein IRS has recognized NTEU as the exclusive collective bargaining representative of a nationwide unit of employees in the district offices, regional offices and the National Office, with certain exclusions not here relevant. At all times material IRS and NTEU were parties to a collective bargaining agreement covering the nationwide unit, hereinafter referred to as the National Agreement. The IRS employees in the Hartford District, including those in the Wethersfield, Connecticut Post of Duty, hereinafter called Wethersfield POD, are part of the nationwide unit. The National Agreement provides for local mid-term agreements and contains a full grievance and arbitration process.
James Quinn has been the District Director of IRS' Hartford District office for seven years and Richard Augustine has been the District's labor relations representatives.
The District maintained its Wethersfield POD at Spring Street until October 1984. Located in the Spring Street location were Examination; Collection; Estate and Gift tax; and Employee Plans and Exempt Organization (EP - EO) work groups. The Spring Street facility contained no common break room and there were four separate coffee pots and each work group maintained one in its work area. There was one compact refrigerator maintained in the Collection area and a second in the Examination area. The employees could store lunches in the refrigerators and the refrigerators were used to refrigerate soda and juice, which were available for sale. Coffee, tea, dried soup and hot chocolate were available for purchase. No snack food (cookies, crackers, etc.) was displayed and available on a regular basis in the Examination area or in any other area during 1984, prior to relocation of the Wethersfield POD. 4
There are about 100 to 115 employees in the Wethersfield POD and it was, at all times material, headed by Ralph Skau, the District Director's Representative.
During the summer of 1984 the IRS Hartford District Office notified NTEU of its intention to move the Wethersfield POD from Spring Street a short distance to a new location on Silas Dean Highway and provided NTEU with proposed floor plans and other information. On August 24, 1984 NTEU Joint Council 5 Chairman James Ridalfo submitted proposals to the IRS Hartford District Office concerning "the impact and implementation of the move" NTEU proposed, among other things, that "the existing coffee equipment (4 pots) . . . be maintained. . .", and that "the exam refrigerator be maintained." Representatives of NTEU, James Netcoh 6 and Ridalfo, met with District Representative Augustine and entered into negotiations which resulted in a "Collaborative Agreement" 7 (CA).
The CA provides in part,
"5. The four existing coffee pots, and two refrigerators may be maintained, however, they will be located in the 4th floor Break Room. All food and beverage preparation will be restricted to the Break Room.
"6. . . . Employees will be encouraged to take their break and eat lunch in the Break Room. . . ."
The relocation of the Wethersfield POD took place in October of 1984 and the 4th floor break room was established in accordance with the CA. The break room had two small refrigerators, 8 a sink and the four coffee pots for making coffee and other hot drinks. Coffee, tea, hot chocolate and soup were available for sale. Juice and soda were also available for purchase. A price list, approximately 8 1/2" and 11" in size, was posted.
At all material times Ralph Skau was a Group Supervisor of an Examination Group at the Wethersfield POD and was the District Director's Representative at the Wethersfield POD from January 1984 to January 1986. As the District Director's Representative, Skau was in charge of the Wethersfield POD and was responsible for the physical plant, equipment and supplies and he was responsible for maintaining agreements and practices concerning the break room. He was supposed to administer agreements management had with NTEU with respect to "space or change of practice. . . ."
Netcoh, an Internal Revenue Agent in the Examination Division, was responsible for purchasing supplies for the break room for the Examination employees. There are 40 to 45 employees in the Examination Division. In December 1984, at an Examination Division staff meeting, Netcoh asked if there was any interest in having a microwave oven in the break room. The response was positive. As a result, Netcoh began collecting money to purchase a microwave. He collected money from at least five of the seven managers and two of the Branch Chiefs at the Wethersfield POD. 9 By April 1985, Netcoh had raised sufficient funds to purchase the microwave and had determined which microwave oven to buy. Toward the end of April Netcoh told Skau that he wanted to be sure that it was all right to have the microwave. Skau responded that Charles Kerles, the Hartford District Facilities Branch Chief, had approved the microwave oven. On Friday, May 3, Kerles called Netcoh directly and told him that the microwave had been cleared with the District Director himself. 10
On May 4, Netcoh purchased a microwave oven, and on Monday, May 6, he installed it in the break room. From the first day the microwave was in the break room, microwave popcorn was available for sale to employees. Management personnel, as well as unit employees, bought the popcorn and used the microwave oven.
In June 1985, Netcoh began stocking cookies and crackers in the break room. These were supplied by the company which supplied the coffee. Netcoh advised Skau that cookies and crackers could be stocked through the coffee supplier. Management personnel, including Skau, were among the purchasers of the cookies and crackers. 11 There was no objection by Skau or any other IRS representative concerning the stocking and sales of the snacks. The prices of the snacks were added to the posted price lists.
In July 1985, Netcoh located a larger refrigerator to purchase for the break room 12 Skau was aware that Netcoh was purchasing a larger refrigerator for the break room. Netcoh made arrangement with Skau to bring the larger refrigerator into the Wethersfield POD. On August 1, Netcoh purchased the refrigerator. On Sunday, August 4, Netcoh picked up the key to the office at Skau's house 13 and delivered the refrigerator to the Wethersfield POD. He stocked the refrigerator at that time.
During the week of August 5 or August 12, Marc Greenfield, and Examination Branch Chief, returned to the Wethersfield POD from a detail and noticed the third refrigerator in the break room. He immediately called Skau and complained that the refrigerator's appearance was unprofessional and an eyesore. Later that day, Skau and Greenfield met with Netcoh concerning the larger refrigerator. Greenfield said that the style and appearance of the refrigerator were not appropriate to the office. Netcoh said that he could meet these concerns. Greenfield asked whether a larger refrigerator was necessary. Netcoh reminded him that the need for a larger refrigerator had been discussed at two Examination staff meetings. Greenfield requested Netcoh to conduct a poll of the employees. Netcoh agreed to do so.
About a week or two later, Greenfield and Netcoh met again. Netcoh advised Greenfield of the results of his poll - a substantial majority of employees wanted a larger refrigerator. Greenfield now agreed that a larger refrigerator was needed. Either at that time or at a subsequent meeting, Greenfield and Netcoh discussed purchasing a new refrigerator which would be appropriate for the office. They agreed on the size and color and that the refrigerator would be paid for through contributions. Greenfield said that he would run the matter by the District Director.
About three days after this last discussion, Skau asked Netcoh to prepare a memorandum to the District Director requesting permission to have a larger refrigerator in the break room. Netcoh refused to do so because the new larger refrigerator would replace one of the smaller ones and would not change the number of refrigerators in the break room. Netcoh told Skau that it was up to Greenfield or Skau to go to the District Director.
On September 17, District Director Quinn was at the Wethersfield POD on business. While there, he went to the break room and got a cup of coffee. As a result, he sent Skau a memorandum, dated September 30, 1985, directing Skau to "take immediate action to bring the Fourth Floor Break room, and its agreed-upon uses, into compliance with the collaborative agreement."
In response to Quinn's September 30 memorandum, on October 2, Skau directed Netcoh to remove the microwave oven, the larger refrigerator, all snacks and all signs from the break room. Netcoh complied with this directive as soon as possible. All the items were removed within one week.
By memorandum dated October 2, NTEU requested negotiations on the break room changes directed by Skau and requested that the changes be held in abeyance pending negotiations.
By memorandum dated October 3, Quinn responded to the NTEU's October 2 bargaining request, denying that any changes had occurred and refusing to negotiate.
Discussion and Conclusions of Law
At the hearing General Counsel moved to Amend the Complaint by adding Paragraph 1(b) which would allege that the Amended Charge was filed on March 20, 1986 and was served upon IRS on March 21, 1986. The Amended Charge alleged that on October 1, 1985 IRS "unilaterally changed an established practice and condition of employment by ordering the removal of certain conveniences from the staff break room at the Wethersfield, Conn. POD without giving the Union notice and an opportunity to bargain concerning the change and its impact and implementation." Respondent objected to the receipt of the Amended Charge into evidence and to the amendment of the Complaint.
The general requirements for the contents of a charge is set forth in 2423.4 of the FLRA's Rules and Regulations. 14 Section 2423.8 of the FLRA's Rules and Regulations provides:
"2423.8 Amendment of charges.
Prior to the issuance of a complaint, the charging party may amend the charge in accordance with the requirements set forth in 2423.6."
With respect to General Counsel of the FLRA's motion to amend the Complaint to add Paragraph 1(b), I grant the motion because, in fact, an Amended Charge was filed. However, because Section 2423.8 of the Rules and Regulations permits amendment to a charge prior to the issuance of a complaint, I conclude, that it is not permitted to amend a charge after the issuance of a complaint. To conclude otherwise would be to make Section 2423.8 of the Rules and Regulations meaning-less. To permit amendment of a charge before and after issuance of the complaint would require a rule or regulation to so provide, not one that solely provides for amendment of a charge before issuance of a complaint. in light of the foregoing I conclude the Complaint in the subject case can not be based upon the Amended Charge, which was filed after the issuance of the Complaint. 15
I do conclude further, however, that the Charge, which alleged in part, "On or about October 1, 1985, the Hartford IRS management unilaterally ordered the partial closing of the (Wethersfield, Conn. POD) 'snack bar' and has refused to negotiate over the matter", was sufficient to support the allegations in the Complaint that on or about October 1, 1985 IRS refused to bargain in good faith with NTEU by unilaterally changing existing conditions of employment by ordering certain named conveniences removed from the Wethersfield POD break room without giving NTEU notice of the change and an opportunity to bargain concerning the change and the impact and implementation of the change. The charge is merely a means to trigger the FLRA process and allegations may be included in the complaint as long as such allegations bear a relationship to the charge. See Bureau of Land Management, Richfield District Office, Richfield, Utah, 12 FLRA 686 (1983). In the instant case the Charge alleged that IRS unilaterally ordered changes in the Wethersfield POD snack bar (break room) and in so doing refused to bargain with NTEU. This was the incident alleged in the complaint to constitute a refusal to bargain by IRS and such allegation was sufficiently related to the Charge.
The Complaint alleges that IRS unilaterally changed existing conditions of employment by ordering certain conveniences, including a microwave oven, a large refrigerator, food snacks, and signs, removed from the Wethersfield POD break room and by prohibiting such conveniences thereafter, without providing NTEU notice of the change and an opportunity to bargain concerning the change and/or the impact and implementation of the change.
It is undisputed that IRS terminated several break room conveniences, on or about October 1, 1985, including the microwave oven, the large refrigerator, snack foods and the signs listing prices. It is also undisputed that IRS did not provide NTEU any notice or opportunity to bargain concerning the termination of these conveniences. The only issue is whether or not any or all of these conveniences had ripened, by past practice, into conditions of employment.
The availability of break room conveniences, including a microwave oven, large refrigerator, etc. are conditions of employment. Cf. Library of Congress, 15 FLRA 589 (1984).
The FLRA has stated that "(i)n order to constitute the establishment by a practice of a term and condition of employment the practice must be consistently exercised for an extended period of time and followed by both parties, or followed by one party and not challenged by the other over a substantially long duration." Social Security Administration, Mid-America Service Center, Kansas City, Missouri, 9 FLRA 229 (1981) at 240.
With respect to the microwave oven, Netcoh started collecting money to purchase such an oven after a December 1984 16 meeting of the Examination Division. He collected money not only from employees, but also from at least five of the seven managers and from two Branch Chiefs in the Wethersfield POD, including Skau. During the end of April, 1985 after having collected sufficient funds, Netcoh checked with Skau, the District Director's Representative, 17 that it was okay to buy the microwave oven. Skau stated that the Hartford District Facilities Branch Chief had approved the installation of the microwave oven and on May 3 the District Facilities Branch Chief directly told Netcoh that the District Director himself had approved the installation of the microwave oven. Netcoh then purchased the microwave oven and installed it in the break room on May 6, 1985. The microwave oven was in plain sight and was in use continuously from when it was installed until it was removed on October 1, 1985, some five months. It was used by employees and management personnel.
In light of the foregoing noting the specific approval of the District Director's Representative and the District Facilities Branch Chief for the purchase and installation of the microwave oven, and its open use for five months by both employees and management personnel, I conclude that the use of the microwave oven had ripened into a term and condition of employment.
Similarly I conclude that the display and sale of snacks (cookies and crackers) had also become a condition of employment by October 1, 1985. Thus I rely upon the fact that Netcoh advised Skau that the supplier of the coffee would supply snacks (cookies and crackers). 18 Beginning in June 1985 snacks were openly displayed and sold in the break room, until they were removed on October 1, 1985. Two Branch Chiefs and the group managers as well as rank and file employees used the break room regularly. Similarly, soon after moving into the new offices, signs were put up in the break room setting forth the prices of items for sale.
I conclude that the sale of snacks and the posting of price lists had gone on a daily basis openly and easily observed for a sufficient period of time to have ripened into conditions of employment. 19
With respect to the microwave oven, the snacks and the price lists, management did not merely acquiesce in having the conveniences. Management was an active participant in, the arrangement. The conveniences at issue here were used by both management personnel and unit employees on a daily basis. Further, the management personnel who patronized the break room and took advantage of its conveniences were not only lower-level supervisors. They included the head of the Examination Division and the District Director's Representative at the Wethersfield POD. Further, with respect to the use of the microwave oven, express approval was obtained from the Hartford District's Chief of Facilities.
These break room conveniences were available for an extended period of time. 20 A conspicuous sign or signs listing prices always had been posted in the break room,. The microwave oven had been in use and microwave popcorn for sale for five months prior to the termination of the conveniences. Cookies and crackers were stocked in the break room for nearly four months before they were removed.
The situation with respect to the large refrigerator is different than with respect to the microwave oven, snacks, and price lists.
In July or August 1985 Netcoh indicated to Skau that a larger refrigerator would be useful and provide adequate space. On August 1, 1985 Netcoh bought the refrigerator and on August 2 Netcoh made arrangements with Skau to bring the larger refrigerator into the Wethersfield POD. On August 4, 1985 Netcoh went by Skau's home and picked up the office key and Skau looked at the refrigerator and asked Netcoh if he needed help to get it into the office. Netcoh then brought the refrigerator to the office. Very soon after the larger refrigerator was installed, 21 Greenfield, a Branch Chief, complained about the new refrigerator and talked to Skau and Netcoh. I conclude that during the discussion Greenfield objected to the larger refrigerator as an eye sore and, after an employee poll, that one of the same large size would be appropriate. In light of the foregoing I conclude that the use of the larger refrigerator became a condition of employment. The District Director's Representative knew the larger refrigerator was being acquired and he approved 22 with its installation in the break room. Thus he agreed with NTEU to modify the existing conditions of employment by the addition of the larger refrigerator. Thus the new condition of employment was established not by time and practice, but rather was established by express agreement by the District Director's Representative.
In this regard I recognize that the collective bargaining relationship and conditions of employment are dynamic and are continuously changing. The parties are always adjusting and fine tuning work place arrangements. Thus NTEU must be able to rely on the approval of management's representative for such changes.
The IRS's argument that it merely enforced an agreement rather than changed a past practice is rejected. This is not a case of low-level supervisors permitting a practice to develop which clearly conflicts with management policies. See Norfolk Naval Shipyard, Norfolk, Virginia, 4 FLRA 6868 (1980). Most, if not all, of the managers at the Wethersfield POD were aware of the conveniences at issue throughout the periods they were available; and, all the managers were, or should have been, aware of the break room agreement. The District Director's Representative, who is responsible for policing such agreements, specifically agreed to the installation of the microwave oven and large refrigerator and had no objection to the sale of snacks and the posting of the price lists until the District Director ordered the termination of all these conveniences. IRS may not unilaterally disavow and set aside the actions and agreements of its responsible management officials.
Accordingly the unilateral action of IRS in changing these existing conditions of employment, without notice to NTEU and without affording it an opportunity to bargain about the change or its impact and implementation of the change constituted a failure to bargain in good faith in violation of sections 7116(a)(1) and (5) of the Statute. Library of Congress, 15 FLRA 589 (1984).
With respect to the remedy, I conclude a status quo ante remedy is appropriate. See Library of Congress, supra.
Having concluded that IRS violated Sections 7116(a)(1) and (5) of the Statute, it is recommended that the Authority issue the following Order:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Department of the Treasury, Internal Revenue Service, (Washington, D.C.), and Internal Revenue Service, Hartford District, Hartford, Connecticut shall:
1. Cease and desist from:
(a) Changing established conditions of employment concerning employee access to microwave ovens and a large refrigerator, the sale of snacks, and the posting of price lists in the Wethersfield, Connecticut Post of Duty, without first notifying the National Treasury Employees Union, the exclusive representative of unit employees, and affording such representative the opportunity to bargain, concerning the change, as well as the procedures to be observed in implementing the change, and on appropriate arrangements for employees adversely affected by the change.
(b) In any like or related manner interfering with, restraining of coercing employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Permit the employees to put a microwave oven and a large refrigerator in the break room of the Wethersfield, Connecticut Post of Duty and to sell snacks and post price lists in the break room of the Wethersfield, Connecticut Post of Duty.
(b) Provide adequate notice to the National Treasury Employees Union of any intended change concerning employee access to microwave ovens and large refrigerators and concerning the sale of snacks and the posting of price lists and, upon request, afford such representative the opportunity to bargain concerning the change, and on appropriate arrangements for employees adversely affected by such change, and procedures to be observed in implementing such change.
(c) Post at the Wethersfield, Connecticut Post of Duty copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Such forms shall be signed by a responsible official, 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.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region I, 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.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: November 26, 1986
Washington, D.C.
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 change established conditions Of employment concerning employee access to microwave ovens and a large refrigerator and the sale of snacks and the posting of price lists in the Wethersfield, Connecticut Post of Duty, without first notifying the National Treasury Employees Union, the exclusive representative of our employees, and affording such representative the opportunity to bargain, concerning the change, as well as the procedures to be observed in implementing such change, and on appropriate arrangements for employees adversely affected by such change.
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, permit employees to put a microwave oven and large refrigerator, in the break room of the Wethersfield, Connecticut Post of Duty and to sell snacks and post price lists in the break room in the Wethersfield, Connecticut Post of Duty.
WE WILL provide adequate notice to the National Treasury Employees Union of any intended change concerning employee access to microwave ovens and large refrigerators and concerning the sale of snacks and the posting of price lists and, upon request, afford such representative the opportunity to bargain concerning such change, and on appropriate arrangements for employees adversely affected by such change, and procedures to be observed in implementing such change.
_________________________
(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 of the Federal Labor Relations Authority, Region 1, whose address is: 10 Causeway Street, Room 1017, Boston, MA 02222-1046, and whose telephone number is: (617) 565-7280.
FOOTNOTES
Footnote 1 In reaching this result, we agree with the Judge's findings and conclusions regarding the authority of the Respondent's District Director's Representative.
Footnote 2 At the hearing General Counsel of the FLRA moved to amend the Complaint by adding Paragraph 1(b) which would allege that the Amended Charge was filed on March 20, 1986 and was served on IRS on March 21, 1986. IRS opposed the Motion and the receipt of the Amended Charge into evidence on the grounds that the Amended Charge, filed after issuance of the Complaint, was untimely. I reserved ruling on the Motion of the General Counsel of the FLRA.
Footnote 3 The Transcript at page 140 line 23 is corrected so that "August of 1984" is changed to read "August of 1985".
Footnote 4 Employees, who occasionally sold such snacks, had left the Spring Street facility prior to 1984.
Footnote 5 There are two NTEU Chapters in the Hartford District and together they form the Joint council.
Footnote 6 In December 1984 Netcoh became NTEU Steward.
Footnote 7 The CA's full title is "Collaborative Agreement Between NTEU and the Hartford District Management, Regarding the Relocation of the Wethersfield Post-of-Duty".
Footnote 8 One refrigerator was for the Examination Division and the other was for the Collection Division.
Footnote 9 Skau contributed for the microwave oven.
Footnote 10 The District Director denies he told Kerles that he approved the microwave installation. Netcoh's testimony that Kerles told Netcoh that Quinn had approved the microwave oven is undenied.
Footnote 11 Snack foods were also available from vending machines elsewhere in the building.
Footnote 12 At an Examination Division staff meeting in December 1984 or January 1985, the consensus was that a larger refrigerator was needed.
Footnote 13 Skau asked Netcoh if Netcoh needed assistance moving the refrigerator into the break room.
Footnote 14 5 C.F.R. 2400 et seq., hereinafter called the FLRA's Rules and Regulations.
Footnote 15 In so concluding, I need not reach the issue of whether a charge amended after the issuance of a complaint, which raises substantive issues not raised in the complaint, can be relied upon to amend the complaint substantively to reflect the new issues raised in the amended charge. In the instant case the motion to amend the complaint dealt only with procedural matters, i.e. the filing of the Amended Charge.
Footnote 16 Some two months after the move into the new quarters.
Footnote 17 As the District Director's Representative Skau testified that he was responsible, among other things, for administering union agreements and any agreements management would have with NTEU with respect to "space or change of practice, or anything of that nature."
Footnote 18 Skau testified that although he had advance notice of the snacks coming in, there was never a formal request for permission or negotiation. The record fails to establish that there were any objections to the bringing in of snacks.
Footnote 19 I conclude that the record fails to establish that snacks and/signs were regularly available or openly displayed at the old Wethersfield POD or were conditions of employment before the move. With respect to the snacks, I find they were only available on occasion and were not sufficiently regularly available to constitute a condition of employment. Similarly the price lists in the former Wethersfield POD dealt primarily with soda, juice, coffee, etc. and not the snacks. Further, I find they were not of the same size and appearance as the signs in the new Wethersfield POD.
Footnote 20 Where the practice in dispute is one that is open and obvious and is used on a daily basis, the period of time sufficient to make it a condition of employment would be substantially shorter than a practice that is episodic or rarely occurs.
Footnote 21 Either during the week of August 5 or 12, 1985.
Footnote 22 He not only approved the installation, he offered to help deliver it to the break room.