[ v16 p777 ]
16:0777(106)CA
The decision of the Authority follows:
16 FLRA No. 106
INTERNAL REVENUE SERVICE
OGDEN SERVICE CENTER, OGDEN, UTAH
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 7-CA-580
DECISION AND ORDER
The Chief Administrative Law Judge issued the attached Decision in
the above-entitled proceeding finding that the Respondent had not
engaged in the unfair labor practices alleged in the complaint, and
recommending that the complaint be dismissed. Thereafter, the Charging
Party and the General Counsel filed exceptions to the Chief Judge's
Decision, and supporting briefs, and the Respondent filed
cross-exceptions and an opposition to the Charging Party's and General
Counsel's exceptions, and 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
Chief Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Chief Judge's Decision and the entire record, the Authority hereby
adopts the Judge's findings, conclusions and recommended Order. /1/
ORDER
IT IS ORDERED that the complaint in Case No. 7-CA-580 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., December 11, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
INTERNAL REVENUE SERVICE
OGDEN SERVICE CENTER, UTAH
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 7-CA-580
Nicholas LoBurgio, Esq.
For the General Counsel
Keith A. Aqui, Esq.
For the Respondent
Before: JOHN H. FENTON
Chief Administrative Law Judge
DECISION
Statement of the Case
This proceeding arises under the Federal Service Labor-Management
Relations Statute (5 U.S.C. 7101 et seq.) and the Final Rules and
Regulations issued thereunder (5 C.F.R. 2423.14 et seq.) It is based on
a complaint issued by the Regional Director of Region VII, Federal Labor
Relations Authority, alleging that Respondent violated Section
7116(a)(1) and (5) on April 12, 1980, when it "unilaterally implemented
a change in conditions of employment involving a relocation and
reorganization affecting tax auditor and revenue agent quality
reviewers" at its Ogden, Utah, facility.
At issue is the question whether Respondent fully disclosed to the
Charging Party the adverse impact upon quality review personnel of a
planned nationwide reorganization of its Service Centers, thus
foreclosing the opportunity to negotiate such matters before
implementation occurred. More specifically, the General Counsel
contends that Respondent never definitely informed the Charging Party
that such changes would occur, and that, in any event, while it may have
allayed the latter's concerns with assurances that there would be no
adverse impact, i.e., that neither the duties, grades nor numbers of
such employees would be changed, it did not reveal the fact that they
would be placed under the supervision (and evaluation) of the very
managers whose work product they would review. The predicament of being
commissioned to expose errors made which are the responsibility of
supervisors who would rate their performance is the change in employment
conditions which is central to this controversy. /2/ At issue also is
whether the National Treasury Employees Union could designate Chapter 67
as its representative for the negotiations requested by the latter.
A formal hearing was held in Washington, D.C. on May 19, 1981. All
parties were afforded full opportunity to examine witnesses, introduce
evidence and file briefs. Upon the entire record, including my
observation of the witnesses and their demeanor, I make the following
findings of fact, conclusions of law and recommended order:
Findings of Fact
1. The National Treasury Employees Union (NTEU) is the exclusive
representative of the professional and nonprofessional employees at the
Ogden Service Center. Since 1977, it has been the certified
representative of all such employees in a nationwide consolidated unit
of the twelve such service centers. NTEU Chapter 67 also represents the
Ogden employees, there being an understanding that NTEU negotiates
contracts and all matters affecting more than one center or facility,
and that the relevant Chapter bargains with respect to matters affecting
only that particular facility.
2. On January 5, 1979, Michael Dolan, Respondent's Labor Relations
Branch Chief, wrote NTEU National President Vincent L. Connery,
providing the latter with further information regarding the decision of
the IRS Deputy Commissioner to establish a Compliance Division in all
Service Centers. In relevant part, Dolan said:
You will note that the current Examination Division will become
a Branch within the new Compliance Division. Consonant with this
realignment, the new Examination Branch will consist of two
sections: the Classification Section, formerly the Classification
Branch; and the Correspondence Examination and Processing
Section, formerly two separate branches.
The projected impact of this realignment on bargaining unit
employees in the current Examination Division is somewhat diverse.
Specifically:
1. The full working level of the Correspondence Examination
function will be GS-6. However, any GS-7 incumbents will not be
downgraded until such time as the Office of Personnel Management
revokes its stay on the downgrading of misclassified position. If
it becomes necessary to downgrade incumbents, I will notify you
prior to the issuance of any notices of proposed adverse action.
2. Those positions currently assigned to the Technical and
Quality Review Staff of the Examination Division will be
reassigned to the Quality Review Staff of the new Compliance
Division and will continue performing the same functions.
However, since the Quality Review Staff will review work of the
entire Compliance Division, the number and kind of positions
assigned to Examination review work may change. For example,
there may not be a need for any GS-512 work on the Quality Review
Staff. The National Office Examination Division is currently
developing procedures for their quality review program and as soon
as they are available, I will forward you a copy.
3. There will be no GS-526 work in the Correspondence and
Processing Section. If any Service Center still has encumbered
GS-526 positions in the current Correspondence Examination Branch,
these positions will be abolished no later than June 30, 1979.
4. Any excess work leader positions which remain encumbered
will be abolished no later than June 30, 1979.
In all job abolishment actions that this realignment may
necessitate, all incumbents who meet the eligibility requirements
will be offered the option of pursuing discontinued service
retirement prior to my reassignment efforts.
Please provide me with any comments or questions you may have
before January 23, 1979.
3. On January 25, 1979, National President Connery wrote all Service
Center Chapter Presidents, notifying them of Respondent's intention to
establish a new Compliance Division in Service Centers and of the fact
that NTEU had requested negotiations on the impact and implementation of
the change, and requesting their input on the matter. In connection
therewith, Connery forwarded the Dolan letter set forth in paragraph 2,
above.
4. Between the time of the Dolan letter, and the first and,
apparently, only negotiation session concerning the reorganization, on
April 18, IRS management decided to place the Quality Review Tax Auditor
and Revenue Agent personnel within the Classification Section of the
Examination Branch of the Compliance Division. /3/ Thus, these
employees would, organizationally, be dropped, from the Division level
two tiers down to the Section level. There they would be supervised and
evaluated by Section Chiefs, the work of whose subordinates they would
review. This decision was not communicated to NTEU prior to the
negotiation session.
5. On April 18, Robert Tobias, Executive Vice President and General
Counsel of NTEU, met with Bruce Tomaso and a number of other management
representatives to discuss the planned reorganization and its impact.
Tomaso, using charts, provided an overview of the organizational changes
and identified the people (19 Tax Examiners and eight clericals) whose
jobs were to be abolished. Tobias asked about the impact on Tax Auditor
and Revenue Agent Quality Reviewers and was informed that there would be
no adverse impact upon them because they were to be moved to the
Classification Section where they would perform the same work at the
same grade level. There was only brief mention of this matter, as the
overriding concern of the conferees was to identify and work out a
method for placing, elsewhere in the system, those employees whose jobs
were to be eliminated. The parties entered an Interim Agreement which
provided that IRS would furnish NTEU with a "match list" of job
alternatives for each such employee, and that it would not commence
adverse action proceedings against employees who were not thereby
reassigned until after a priority placement program then being developed
had been negotiated and was in effect. There was at the meeting no
mention of the fact that Quality Reviewers would be supervised and
evaluated by the supervisor who was responsible for the work product
which they reviewed and, of course, would have occasion to criticize.
6. Almost one year later, on March 14, 1980, officials of the Ogden
Service Center informed officials of NTEU Chapter 67 that the Quality
Review Staff was to be moved organizationally and physically, and would
be under the supervision of the Chief of the Classification Section of
the Compliance Division. The Chapter President responded that such
changes were negotiable and that negotiations would be requested if
management insisted on such changes. Local management said that the
subject had been negotiated at the national level.
7. On April 3, 1980, Tobias advised the President of Chapter 67 that
the subject matter in dispute had not been negotiated at the national
level, suggested that she request local negotiations and stated that he
would direct a "check on the matter nation-wide."
8. On April 8, 1980, Chapter 67 wrote the Director of the Ogden
Service Center requesting negotiations on the substance, impact and
implementation of the change and asking for certain information.
9. On April 21, 1980, the Ogden Service Center implemented the
change outlined to the Chapter officials on March 14. No bargaining
occurred in Ogden.
Discussion and Conclusions
General Counsel contends that IRS expressly and knowingly created the
false impression, in the Dolan letter, that the Quality Review Staff
would be moved laterally from one Division to another, that it never
thereafter informed NTEU that the reorganization would involve dropping
the Quality Review Staff to the Section level, and that the obligation
to provide a reasonable opportunity to bargain about the impact and
implementation of the placement of such employees at the Section level
was therefore still alive when the implementation occurred in April of
1980. General Counsel further argues that such obligation was owed to
Chapter 67 because Executive Vice President Tobias authorized the
Chapter President to negotiate over the change and because the Chapter
inherently retains the right to negotiate matters of local impact where
NTEU was not notified that the change was nationwide.
IRS asserts that it did provide NTEU with notice of the contemplated
change in the Dolan letter and at the April 18 meeting, that it provided
sufficient information to enable NTEU to develop and submit proposals
concerning the reorganization, and that it had no obligation to
negotiate such an issue, in any event, at the local level. As to its
fulfillment of its obligation to the NTEU, it argues that it delineated
the nature of the organizational changes which would occur, and that it
cannot be held accountable for a failure to divine every potential
impact of a proposed change. Rather, it is for the Union to examine the
consequences of the planned changes and to formulate appropriate
bargaining demands. As to the level of bargaining, IRS asserts that
this was a nationwide change, that the parties' agreement to bargain
locally only on matters of strictly local impact cannot be repudiated by
NTEU at its whim, and that President Connery's letter to Chapter
Presidents, seeking their input for negotiations NTEU had requested over
the impact and implementation of the establishment of the new Compliance
Division, constituted acknowledgement that national negotiations were
appropriate for such subject matter.
The Dolan letter made clear IRS's intention to reorganize all Service
Centers in the same way. It was addressed to the national union and
provoked a bargaining request from the national union, consistent with
the understanding that such matters are proper subjects for
national-level negotiations. While much is made of the tentative nature
of the plans outlined in the letter ("may"), that word was expressly
linked to the possibility of a change in the number and kind of
positions to be assigned to Examination review work, and the example was
given that there might be no need for Revenue Agents on the new Quality
Review Staff. The letter clearly said that the Quality Review Staff
would be transferred from the Examination Division to the planned
Compliance Division, and that the Examination Division would become a
Branch of the new Division. While I would find it ambiguous with
respect to whether the Quality Review Staff would be attached to the new
Examination Division, or would be an "autonomous" unit within the
Compliance Division, it is clear that IRS intended a lateral transfer
and that NTEU so understood the letter.
I have found that NTEU was informed at the April 18 discussions, that
the personnel at issue would be in the Classification Section of the
Examination Branch of the new Division, where they would perform the
same work at the same grade level. I find this matter was addressed
because the letter left open the question of the placement of the
Revenue Agents, indicating there might be no need for them on the
Quality Review Staff, and because a program analyst took notes and made
a report of that fact. Thus NTEU was assured they would not be
"adversely affected," in a context where job abolishment was very much
the focus of concern, and in a fleeting way. There is no indication
that any of the negotiators gave any thought to the notion that such
placement would create the problem later perceived by Chapter 67
officials in Ogden. It was not mentioned, never mind explored. While I
agree with IRS that good faith bargaining does not require that it
divine all potential impact of a change, but only that it give the Union
fair notice of its intentions, the question remains whether NTEU
received adequate notice of its decision to place these personnel in the
Classification Section. Given the lack of any written notice, the fact
that only passing reference was made to such placement in the context of
discussions focusing on adversely affected employees (job elimination or
downgrading), and the fact that it did not "register" on as astute and
intelligent a negotiator as Tobias, I conclude that IRS did not provide
NTEU with adequate notice at that time. /4/
There is no evidence that IRS's intended reorganization of all its
Centers was not accomplished. We know only that this case is confined
to implementation in Ogden, where Chapter 67 made an issue of the
matter, that NTEU asserts that it was not made aware of the assignment
of the affected personnel to the Section level, and that no bargaining
ever took place concerning the impact of such reassignment.
IRS's decision to reassign these Quality Review personnel from the
Division level to the Section level, where they would review work which
was that Section Chief's responsibility, and yet be evaluated for
purposes of job retention and promotion by that person, gave rise to a
bargaining obligation respecting the impact and implementation of the
change. But that obligation, because it rested on a change which
affected more than one facility, ran to NTEU rather than any of its
Chapters. The bargaining understanding which followed the unit
consolidation and certification of NTEU, restricted the role of the
Chapters to matters of purely local concern. As IRS never adequately
disclosed to NTEU its intention to drop these personnel through several
organizational levels, it would follow that, in making such changes, it
did not fulfill its obligation to first afford NTEU a reasonable
opportunity to bargain about the procedures to be observed in taking
such action and appropriate arrangements for employees adversely
affected. However, if NTEU can be charged with actual knowledge in
advance (through Chapter 67) the appropriate response was to demand
bargaining at the national level, rather than to attempt to commission
Local 67 to enter local negotiations over a nationwide change. If it
can be viewed as learning of a fait accompli, its recourse was to file a
timely charge directed at the deprivation of its right to reasonable
notice and an opportunity to negotiate. It did neither. Rather it
alleged, as does the General Counsel's Complaint, that IRS flouted its
bargaining obligation to NTEU when it refused to negotiate with its
representatives, the officials of Chapter 67.
While NTEU is free to designate whomever it desires as its
representative in bargaining, including any officer of Chapter 67, it
cannot thereby create an obligation that IRS bargain about local matters
with it (albeit through local union officials). Nor can it create an
obligation that IRS bargain about the local impact of a national change
only with that particular Chapter which chooses to make an issue of the
matter. To hold otherwise would, as Respondent contends, license it to
alter bargaining arrangements as its whim, and render meaningless the
agreement of the agency and the certified exclusive representative of
all employees in this unit that matters affecting more than one facility
would be subject to negotiations at the national level, whereas matters
affecting only a single facility would be subject to negotiations with
that Chapter.
General Counsel relies on SSA, Northeastern Program Service Center, 8
A/SLMR 893 in asserting that NTEU can have it both ways where the
national union authorizes the local union to negotiate over the change.
There, as here, the Agency had a number of service centers, and the
national union was the recognized exclusive representative of the
employees at such centers. Unlike here, a change limited to one center
was made, and the agency defended its refusal to bargain with local
union officials on the ground that such duty was owed exclusively to the
national representative. The Assistant Secretary held, on the basis of
the evidence, that the national union had designated the local to act in
its behalf as to matters affecting the local installation and that the
agency had accepted this arrangement by instructing center managers to
negotiate with the locals on local matters. This is a far cry from
recognizing, as sufficient to alter an established bargaining pattern, a
national union's suggestion that a local official "request local
negotiations," followed by a request focusing on changes at that
particular Center. General Counsel supplements this argument with the
contention that NTEU could designate the local as its bargaining agent
on issues first presented at the local level and as to which it had
never been informed that a national change was underway, and, in any
event, that a local has the inherent right to compel bargaining as to
local impact in such circumstances. As noted earlier, the obligation to
deal with the national union would survive in such circumstances until
extinguished by the failure to file a timely unfair labor practice
charge, but the failure to recognize the national for such purposes does
not give rise to an obligation to the local. Default at one level does
not create new rights at another level.
In sum, Chapter 67 could represent NTEU in negotiations concerning
the impact and implementation of the change at all Centers, and it
could, in its own behalf, address any peculiarly local problems. It
could not, on behalf of NTEU, effectively request bargaining concerning
the impact of a nationwide change at Ogden only.
Accordingly, I recommend that the Complaint be dismissed.
JOHN H. FENTON
Chief Administrative Law Judge
Dated: September 3, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ See Department of Health and Human Services, Social Security
Administration, 10 FLRA 77 (1982) and Department of Health and Human
Services, Social Security Administration, 6 FLRA 202 (1981).
/2/ While the Complaint can be read as putting into issue the
physical relocation as well as the organizational redeployment of such
employees, the matter was not explicitly addressed in the bargaining
request, the unfair labor practice charge, or at the hearing. I
conclude it is not an issue in the case.
/3/ It is to be noted that the Revenue Agents occupy the GS-512
series which the Dolan had indicated "may" not be needed on the Quality
Review Staff. Thus, so far as the Union knew when the April 18
negotiations commenced, there was every indication that the transfer of
Quality Review Personnel would be lateral, but there was no assurance
that the number and kind of positions would not change. It has been
specifically forewarned that Revenue Agents might not remain on such
staff at all.
/4/ See Department of the Army, Harry Diamond Laboratories, Adelphi,
Maryland, 9 FLRA No. 66.