12:0019(7)CA - IRS and Brookhaven Service Center and NTEU and NTEU Chapter 99 -- 1983 FLRAdec CA
[ v12 p19 ]
12:0019(7)CA
The decision of the Authority follows:
12 FLRA No. 7
INTERNAL REVENUE SERVICE AND
BROOKHAVEN SERVICE CENTER
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION CHAPTER 99
Charging Party
Case No. 2-CA-606
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 alleged in the complaint and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. Thereafter, the Respondent filed exceptions to the
Judge's Decision with a supporting brief.
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 recommendations only to the extent
consistent herewith.
The Judge concluded that the Internal Revenue Service and Brookhaven
Service Center (the Respondent) violated section 7116(a)(1) and (5) of
the Statute by failing to bargain with the Charging Party, National
Treasury Employees Union (NTEU) and NTEU Chapter 99 concerning the
procedures to be utilized in implementing, and appropriate arrangements
for employees adversely affected by, the Respondent's "unmeasured"
system of evaluation to a "measured" system. In this regard, the Judge
found that the Respondent announced its intention to implement such
conversion; that NTEU requested negotiations over the substance, impact
and implementation thereof; that the Respondent asked NTEU to submit
specific proposals concerning the change; that NTEU submitted twelve
proposals as requested; that the Respondent declared all twelve
proposals nonnegotiable in a response to NTEU approximately two months
later; and that the Respondent effectuated the conversion several weeks
thereafter. The Judge further found, contrary to the Respondent's
contentions, that three of NTEU's twelve proposals /1/ "all relate to
the equal distribution of work and are negotiable because they concern
the quantity of work to be assigned to each employee and . . . that
impacts directly on each employee's potential output. Those proposals
do not conflict with management's right to assign a particular type of
work to an employee." /2/ Accordingly, he concluded that the
Respondent's refusal to bargain concerning these three proposals,
thereby instituting a conversion to a measured system of evaluation
without giving NTEU an opportunity to bargain with respect to the
implementation and impact of the conversion, constituted a violation of
section 7116(a)(1) and (5) of the Statute. To remedy the violation
found, the Judge concluded that a status quo ante remedy would be
appropriate.
While the Authority agrees with the Judge's findings that the
Respondent was required to notify NTEU of the decision to change from an
unmeasured to a measured system of performance evaluation for the
employees in its "Dishonored Check" unit and to bargain with NTEU upon
request concerning the procedures which management will observe in
implementing the change and concerning appropriate arrangements for
employees adversely affected, the Authority disagrees with the Judge's
conclusion that the Respondent violated section 7116(a)(1) and (5) of
the Statute in the circumstances of this case. Thus, as found by the
Judge, NTEU in fact received adequate notice of the Respondent's
intended change and an opportunity to submit specific proposals
concerning the impact and implementation thereof. NTEU then submitted
twelve proposals, all of which were considered and declared
nonnegotiable by the Respondent before the change was implemented. As
stated above, the Judge's finding of an unlawful refusal to bargain was
based on his conclusion that three of the disputed proposals are within
the Respondent's duty to bargain. However, the Authority concludes that
the three proposals at issue (supra n. 1) directly interfere with
management's right to assign work within the meaning of section
7106(a)(2)(B) of the Statute, /3/ and therefore are not within the
Respondent's duty to bargain. Thus, contrary to the Judge's conclusion
that the disputed proposals "do not conflict with management's right to
assign a particular type of work to an employee," the Authority finds
that the literal language of the proposals would require the Respondent
to distribute an equal amount of all types of work to all employees in
the unit. In National Treasury Employees Union and Department of the
Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), at 775, affirmed
sub nom. National Treasury Employees Union v. Federal Labor Relations
Authority, No. 80-1895 (D.C. Cir. Oct. 12, 1982), the Authority stated:
The right to assign work to employees or positions under
section 7106(a), subject to the provisions of section 7106(b), is
composed of two discretionary elements: (1) the particular duties
and work to be assigned, and (2) the particular employees to whom
or positions to which it will be assigned. (Footnote omitted)
All of the disputed proposals would directly interfere with both
discretionary elements by requiring management to assign all types of
work to all employees in the organizational unit and in an equal amount.
See also National Treasury Employees Union and Department of the
Treasury, Internal Revenue Service, 7 FLRA No. 35 (1981). /4/
Accordingly, the Authority concludes that the Respondent did not violate
its duty to bargain in good faith with NTEU, /5/ and that the complaint
alleging a violation of section 7116(a)(1) and (5) of the Statute must
be dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 2-CA-606 be, and it
hereby is, dismissed.
Issued, Washington, D.C., April 22, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Elliot M. Carlin, Esq.
For the Respondent
Allan W. Stadtmauer, Esq.
For the General Counsel
David H. Lipton
For the Charging Party
Before: ALAN W. HEIFETZ
Administrative Law Judge
DECISION
Statement of the Case
This proceeding arose pursuant to the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result
of an unfair labor practice charge filed on September 19, 1980, with the
Federal Labor Relations Authority. Consequently, on November 28, 1980,
the Acting Regional Director, Region II, of the Authority issued a
complaint alleging that Respondent violated Sections 7116(a)(1) and (5)
of the Statute by refusing to negotiate in good faith with the Charging
Party concerning "the impact of and procedure for implementing its
decision to measure the output of employees in its dishonored check
unit." Respondent denies that allegation and moves to dismiss the
complaint for failure to make a prima facie.
A hearing was held on February 3, 1981, in Holtsville, New York. All
parties are afforded full opportunity to be heard, to examine witnesses
and to introduce evidence. Post hearing briefs have been filed /6/ and
considered. /7/ Upon the entire record, including my observation of the
witnesses and their demeanor, I make the following findings, conclusions
and recommendations.
Findings of Fact
At all times material to this case, Respondent and the Charging Party
have been parties to a collective bargaining agreement covering unit
employees at the Brookhaven Service Center (BSC). Chapter 99 has acted
for and on behalf of NTEU at BSC and has been recognized as the
exclusive bargaining agent consistent with the parties' adherence to the
Multi-Center agreement known as MCA-II.
Unit employees of the Dishonored Check Function process debit
vouchers issued by IRS' depository banks when they dishonor certain
taxpayers' checks. The banks may return checks to the IRS for a variety
of reasons, e.g. insufficient funds, encoding errors, and missing
checks. A debit is entered against the corresponding credit given to
the taxpayer when the remittance in question was originally received.
Basic dishonored checks are worked by all employees in the Dishonored
Check Function although certain employees additionally work encoding
errors, missing checks, correspondence and adjustments. There are now
five permanently assigned employees in this unit although there are
hired seasonable or WAE (when actually employed) tax examiners during
peak work periods.
The Dishonored Check Function has been merged with the Unidentified
Check Unit which determines the source and application of funds derived
from checks of unknown origin. That unit has four permanently assigned
employees as well as an indeterminate number of seasonal and WAE
employees.
In the Unidentified Check Unit each check is considered to be a
single case file to be investigated and, therefore, the work is easily
distributed on an even basis. However, in the Dishonored Check Unit,
banks send in packages of twenty to fifty checks each which cannot be
split up and are, therefore, assigned to individual employees by the
package, regardless of the total number of checks in each package.
By memorandum dated April 25, 1980, management at BSC announced its
intention to convert the Dishonored Check Unit from an "unmeasured" (not
subject to numerical evaluation) system of evaluation to a "measured"
(numerically evaluated) system. The terms of "unmeasured" and
"measured" are described in the collective bargaining agreement under
Article 6 (Promotions) and Article 26 (Furlough and Recall, Seasonal
Employees).
By memorandum dated May 1, 1980, the Charging Party requested
negotiations over the substance, impact and implementation of the
intended conversion. On May 9, 1980, Respondent requested that the
Charging Party submit its proposals concerning the change by May 23 and
it announced its intention to implement the procedure on June 2, 1980.
The Charging Party submitted twelve proposals on May 22, 1980.
Respondent declared all twelve proposals non-negotiable by a response
dated August 1, 1980, and the conversion was effectuated on or about
August 25, 1980.
Both before and after the conversion, tax examiners reported their
time and volume on weekly Employee Time Reports as well as a weekly
inventory sheet. Data from the Employee Time Reports were compiled into
Individual Performance Reports (IPR's) which were available to employees
both before and after the conversion. However, before the conversion,
the IPR's had little significance, if any, to those employees. The data
was also kept by a former supervisor in the form of a "blotter record"
which she used in the process of her evaluation of employees to be
furloughed or recalled, although there was no evidence that this
"blotter record" was used to evaluate permanent employees.
The conversion resulted in no change of job function, assigned tasks
or method of reporting output. However, employees at a Union meeting
expressed a number of concerns over the significance of the change from
an "unmeasured" to a "measured" method of evaluation. They were most
concerned that equitable distribution of work was impossible in the
Dishonored Check Unit since batches of checks were not numerically
uniform. They were concerned that not all employees in the unit knew
how to perform the full range of functions which were to be placed into
the various production codes. They were concerned that those who knew
how to type could use the computers faster than those who could not type
and that therefore, the former would be able to work faster than the
latter. They were concerned about the quality and proximity of research
material necessary to the completion of individual examinations. /8/
They were concerned that any emphasis on quantity would have a
detrimental effect on both the quality of the work and the cooperative
attitude among fellow employees. They were concerned that some
functions were easier than others and that the easier the function to
which one might be assigned, the greater the production coefficient that
might be achieved. And finally, they were concerned that "nullifieds",
cases in which errors were made, would be distributed unequally and to
those who had not caused the error, all to the disadvantage of an
employee who was attempting to keep his or her production at a high
level.
Discussion and Conclusions
The General Counsel argues that the conversion from an unmeasured to
a measured system of evaluation is a change in personnel policies and
practices, that the change had a significant impact which required
negotiation over that impact and the implementation of the change, and
that the Union's proposals were negotiable. Respondent, on the other
hand, argues that neither a change in working conditions, personnel
policies or practices, nor impact or any such change, has been proven;
that the Union failed to submit any negotiable proposals; and that any
obligation to bargain over impact and implementation has been satisfied
by the provisions of the parties' collective bargaining agreement.
There is no question that on April 25, 1980, Respondent announced its
intention to "convert" the Dishonored Check Function to a measured
evaluation. There is also no doubt that the term "conversion" is not a
metaphysical abstraction; it is, simply put, a synonym for the word
"change." And a conversion from one system of evaluation to another is a
change from one to the other. The fact that there is no physical change
in the work to be done by employees or in the method of reporting their
output does not belie that a change has taken place. Although the
differences between subjective and objective evaluation might be subtle,
their ramifications are not.
Consider, by way of analogy, the conversion at a university from a
pass-fail system to a numerically graded system. There is no question
that students must take the same courses to fulfill their major
requirements. There is no question that they must attend classes at the
appointed hour, read the required texts, devote the same amount of time
to homework assignments, and take final examinations. In short, the
students must perform exactly the same tasks under either system. It is
only after the student performs, after the examination is turned in for
a grade, that the system of evaluation becomes significant. U under the
pass-fail system, the student is concerned only whether he or she has
passed the various courses. A student who passes is one of a large,
otherwise undifferentiated class of persons who have demonstrated only
that they have met the minimum qualifications set by the institution.
The system of evaluation does not permit a ranking of students solely by
which selection to an honorary society or to a graduate school might be
made. On the other hand, under a numerically graded system, each
student is ranked in a manner by which his or her individual standing in
the class may be determined. A numerical grade not only indicates
whether the student has passed or failed, but it also indicates whether
the student is a candidate for the dean's list or is in danger of being
placed on probationary status.
There is no less change in the case at bar. Under the unmeasured
system, employees are rated on the merits of their individual
performance; under the measured system, they are rated on the basis of
their performance as it relates to the performance of their peers. /9/
Clearly, under the measured system numerical output becomes significant
and anything which affects the "numbers" an employee is able to show,
affects that employee's relative ranking for purposes of promotion or,
in the case of seasonal or WAE employees, for furlough and recall.
Thus, the numerical output of an employee is directly dependent upon the
number of cases assigned to that employee; an unequal distribution of
work must correspond to an unequal production coefficient, all other
things being equal. Similarly, where numerical production is dependent
upon computer operational skill, the employee who knows how to type will
be able to outperform one who must "hunt" and "peck" at the console.
Finally, where there is pressure to produce numbers, the competitive
atmosphere, while it may spur many to higher productivity, also tends to
decrease cooperative attitudes among the competitors where helping a
colleague to a promotion is viewed as helping yourself out of one.
Respondent argues that there is no evidence of any difference in
training or in collection of data, of actual rating of employees under
the new system, of any detailing or adverse or disciplinary action taken
against any employee, or of any seasonal adjustment in the composition
of the unit. Although the evidence is so limited, there is no
requirement under the Statute that actual impact must be demonstrated.
In the temporal world of labor relations, the Union need not offer up a
paschal lamb in order to put the covenant on the table. All that is
required is a demonstration of a reasonable likelihood that the change
would result in a substantial impact adversely affecting employees,
either immediately or in the future. /10/ Such a standard is consistent
with the legislative history of the Statute which indicates that in
exchange for a strong management rights clause, Congress intended to
broaden the scope of collective bargaining, including the specific area
of adverse effects resulting from the exercise of those management
rights. /11/ The Authority has recognized this relationship between
management rights and the duty to bargain over impact and implementation
where performance standards have been set by management and the union
seeks negotiations to assure that those standards are fair and
equitable. /12/ Under those circumstances, the Authority found a duty
to bargain. I conclude that under the circumstances of this case, the
duty to bargain in good faith must also obtain since there is a
reasonable likelihood that employee's prospects for promotion, furlough
and recall will be substantially impacted by the application of a
changed method of performance evaluation.
Turning to the specific proposals for negotiation, Respondent argues
that none is negotiable and the General Counsel concedes that certain
unspecified proposals arguably go to the substance of the decision to
measure employee output. Clearly proposal number 1, that the Dishonored
Check work remain unmeasured, goes solely to the substance of the
decision and is not negotiable. Proposal 2, that all employees be
cross-trained, has not been shown to be negotiable because by terms of
the collective bargaining agreement, employees may be measured only
against those who perform the same function /13/ and therefore, there
would be no reason to train an employee in a function to which the
employee would not be assigned. Proposals 3, 5 and 6 all relate to the
equal distribution of work and are negotiable because they concern the
quantity of work to be assigned to each employee and, as previously
discussed, that impacts directly to each employee's potential output.
Those proposals do not conflict with management's right to assign a
particular type of work to an employee. Proposal 4, that "nullifieds"
not be measured, is similar to proposal 1 and goes to the substance of
the decision to measure. As proposed, it is not negotiable. Proposals
7 through 10 seek separate reporting of several functions. There is
insufficient record evidence upon which I could base a conclusion as to
the negotiability of those proposals; /14/ the impact is not obvious on
their face. Finally, proposals 11 and 12, concerning the easy
accessibility and proper indexation of research materials, do not relate
directly to, nor impact on the decision to convert to a measured
evaluation. The change in the location of the research tools was
unrelated to the decision to convert and, in any event, their location
and indexation affects all users equally. Under the circumstances,
those two proposals have not been shown to be negotiable.
By instituting the conversion to a measured system of evaluation
without giving the union an opportunity to bargain with respect to the
implementation and impact of the conversion, I conclude that Respondent
has violated Sections 7116(a)(1) and (5) of the Statute. Further, I
conclude that a status quo ante remedy is appropriate since it is the
only meaningful and effective way to remedy the violation and the record
fails to establish that such a remedy would create a serious disruption
of Respondent's operations. /15/ Accordingly, I recommend that the
Authority issue the following order:
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118(a)(7)(A) of the
Federal Service Labor-Management Relations Statute, the Authority orders
that the Internal Revenue Service and its Brookhaven Service Center
shall:
1. Cease and desist from:
(a) Instituting any conversion of the Dishonored Check Unit
from an unmeasured to a measured system of evaluation without
first affording the National Treasury Employees Union Chapter 99 a
reasonable opportunity to negotiate, to the extent consonant with
law and regulations, on the impact and implementation of such
conversion.
(b) In any like or related manner, interfering with,
restraining or coercing employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Rescind and withdraw all evaluations of employees in the
Dishonored Check Unit represented by the National Treasury
Employees Union Chapter 99, which were made under the measured
system of evaluation instituted on or about August 25, 1980,
reevaluating employees where necessary.
(b) Notify the National Treasury Employees Union Chapter 99 of
any intention to institute a conversion of the Dishonored Check
Unit to a measured system of evaluation and, upon request, consult
and negotiate with such representative, to the extent consonant
with law and regulations, concerning the impact and implementation
of such action.
(c) Post at its facilities 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
Director, Brookhaven Service Center, and shall be posted and
maintained for 60 consecutive days thereafter in conspicuous
places, including all bulletin boards and other places where
notices are customarily posted. Reasonable steps shall be taken
to ensure that the 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 with the Order.
ALAN W. HEIFETZ
Administrative Law Judge
Dated: April 21, 1981
Washington, DC
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 THE TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute any conversion of the Dishonored Check Unit
from an unmeasured to a measured system of evaluation without first
notifying the National Treasury Employees Union Chapter 99 and affording
it the opportunity to consult and negotiate, to the extent consonant
with law and regulations, concerning the impact and implementation of
such change.
WE WILL NOT in any like or related manner interview with, restrain or
coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE will rescind and withdraw all evaluations of employees in the
Dishonored Check Unit represented by the National Treasury Employees
Union Chapter 99, which were made under the measured system of
evaluation instituted on or about August 25, 1980, and will issue
reevaluations where necessary.
WE WILL notify the National Treasury Employees Union Chapter 99 of
any intention to institute a conversion of the Dishonored Check Unit to
a measured system of evaluation and, upon request, consult and negotiate
with such representative, to the extent consonant with law and
regulations, concerning the impact and implementation of such action.
(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 II,
26 Federal Plaza, New York, New York 10278.
--------------- FOOTNOTES$ ---------------
/1/ NTEU proposals 3, 5 and 6, referred to by the Judge, state as
follows:
3. The supervisor will insure an equal distribution of work
according to the dates and types of work to all employees in the
unit.
5. Return mail will be equally distributed among all employees
in the unit.
6. Foreign checks will be equally distributed among all
employees in the unit.
/2/ The Judge found that the other nine proposals were nonnegotiable
or were not shown to be negotiable. Neither NTEU nor the General
Counsel filed exceptions to such findings, and especially noting the
absence of exceptions, the Authority adopts the Judge's decision in this
respect.
/3/ Section 7106(a)(2)(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 officials of any
agency--
* * * *
(2) in accordance with applicable laws--
* * * *
(B) to assign work, to make determinations with respect to
contracting out, and to determine the personnel by which agency
operations shall be conducted(.)
/4/ Cf. Association of Civilian Technicians and State of Georgia
National Guard, 2 FLRA 581 (1980), wherein the Authority found
negotiable a portion of a proposal which required assignment of cleanup
duties on a fair and equitable basis. There, the Authority stated, " .
. . the second paragraph of the proposal merely provides that, once
management has decided to require a general cleanup and has determined
which employees will perform such duties, management will distribute
specific assignments to such duties on a fair and equitable basis.
Since there is no showing that a procedure to distribute cleanup
assignments equitably will prevent management from acting at all in
assigning general cleanup duties to technicians, the procedure in
question is within the duty to bargain under section 7106(b)(2) of the
Statute . . . ." Here, as previously stated, NTEU's proposals, by
requiring assignment of work "equally," would remove the Respondent's
discretion to decide which employees will perform which type of work.
/5/ The ALJ's finding of an unfair labor practice was based solely on
his conclusions regarding the three proposals determined here to be
outside the duty to bargain. There is no evidence that the Respondent
otherwise refused to negotiate concerning procedures to be utilized in
implementing, and/or appropriate arrangements for employees adversely
affected by the change.
/6/ Good cause not having been shown, Respondent's motion to file a
reply brief was denied on April 1, 1981.
/7/ Respondent's motion to correct the hearing transcript is hereby
granted.
/8/ These research tools, the RPS and encoding books, were physically
moved away from the employees in the Dishonored Check Unit some months
after, and without any connection to, the conversion. They remain
equally accessible to all employees in that unit although it will take
them all more time to do their research because of the change in
proximity.
/9/ For example, Article 6, Section 6(B), of the collective
bargaining agreement makes the following contrast:
1. Quantity of Work Produced/Utilization of Time
(a) Measured Work - Quantity of units produced. Compare output
with average production of other employees at the same grade in
the same Branch for each program and function worked.
(b) Unmeasured Work - A measure of the employee's effectiveness
in using his/her time to accomplish assigned duties.
2. Quality of Work Produced
(a) Measured Work - A measure of how accurately employees at
the same grade level in the same Branch working the same program
and function perform their duties.
(b) Unmeasured Work - A measure of how accurately and
thoroughly an employee performs his/her duties.
/10/ The "reasonable likelihood" test was enunciated by
Administrative Law Judge Francis E. Dowd in U.S. Government Printing
Office and Joint Council of Unions, GPO. Case No. 3-CA-549 (April 9,
1981). Although the Dowd doctrine has not yet been reviewed by the
Authority and, therefore, is not binding, I adopt it for purposes of
this decision for the cogent reasoning expressed by Judge Dowd in that
case.
/11/ Legislative History of the Federal Service Labor-Management
Relations Statute, Title VII of the Civil Service Reform Act of 1978,
Committee Print No. 96-97, Committee on Post Office and Civil Service,
House of Representatives 96th Cong., 1st Sess., Nov. 19, 1979; pp. 826,
932, 933.
/12/ Department of the Treasury, Bureau of the Public Debt, 3 FLRA
No. 119 (1980); Office of Personnel Management, Washington, D.C., 3
FLRA No. 120 (1980).
/13/ See note 4, supra.
/14/ Actually, proposal 8 is moot. It was adopted by management in a
memorandum announcing the implementation of the conversion to a measured
evaluation.
/15/ San Antonio Air Logistics Center (AFLC), Kelly Air Force Base,
Texas, 5 FLRA No. 22 (1981).