[ v17 p107 ]
17:0107(22)CA
The decision of the Authority follows:
17 FLRA No. 22
DEPARTMENT OF TREASURY
INTERNAL REVENUE SERVICE
MEMPHIS SERVICE CENTER
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 4-CA-20050
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in the
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 General Counsel filed exceptions to the scope
of the Judge's recommended Order.
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 and conclusions, /1/ and the recommended Order as
modified herein. /2/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Department of Treasury, Internal Revenue Service, Memphis
Service Center, shall:
1. Cease and desist from:
(a) Attempting to resolve a unit employee's grievance filed pursuant
to the grievance procedure set forth in its negotiated agreement with
the National Treasury Employees Union, the exclusive representative of
its bargaining unit employees, by dealing directly with the husband of
the employee grievant rather than with the exclusive representative.
(b) In any like or related manner interfering with, restraining, or
coercing its 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 Federal Service Labor-Management Relations
Statute:
(a) Upon request, attempt to resolve Verna Brady's grievance by
dealing directly with the National Treasury Employees Union, the
exclusive representative of its bargaining unit employees.
(b) Post at its facility at the Memphis Service Center, copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Director of the Memphis Service Center, or his designee, and shall be
posted and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure 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 IV, 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.
Issued, Washington, D.C., March 7, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT attempt to resolve a unit employee's grievance filed
pursuant to the grievance procedure set forth in our negotiated
agreement with the National Treasury Employees Union, the exclusive
representative of our bargaining unit employees, by dealing directly
with the husband of the employee grievant rather than with the exclusive
representative. WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute. WE
WILL, upon request, attempt to resolve Verna Brady's grievance by
dealing directly with the National Treasury Employees Union, the
exclusive representative of our bargaining unit employees.
. . . (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 its provisions, they
may communicate directly with the Regional Director, Federal Labor
Relations Authority, Region IV, whose address is: Suite 501, North
Wing, 1776 Peachtree Street, NW., Atlanta, Georgia 30309 and whose
telephone number is: (404) 881-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 4-CA-20050
Harry G. Mason, Esq.
For the Respondent
Linda J. Norwood, Esq.
For the General Counsel
Steven P. Flig
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on July 26, 1982
by the Regional Director for the Federal Labor Relations Authority,
Atlanta, Georgia Region, a hearing was held before the undersigned on
August 24, 1982 at Memphis, Tennessee.
This case arose under the Federal Service Labor-Management Relations
Statute (herein called the Statute). It is based upon a first amended
charge filed on July 22, 1982 by National Treasury Employees Union
(herein called the Union), against Department of Treasury, Internal
Revenue Service, Memphis Service Center (herein called Respondent).
The Complaint alleged, in substance, that on or about August 20, 1981
Respondent by-passed the Union, the exclusive bargaining representative
of its employees, and attempted to resolve a grievance theretofore filed
by employee Verna C. Brady by meeting with James Brady notwithstanding
the fact that the Union represented Verna C. Brady in respect to said
grievance - all in violation of Section 7116(a)(1) and (5) of the
Statute.
Respondent filed an answer dated August 6, 1982 which denied the
material allegation in the Complaint as well as the commission of any
unfair labor practices.
All parties were represented at the hearing. Each was afforded an
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence addressed
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the Union has been and still is, the
collective bargaining representative of Respondent's professional and
non-professional employees, excluding management officials, supervisors,
and other specified classifications.
2. The aforesaid appropriate unit of Respondent's employees is
covered by a National Agreement effective by its terms from January 26,
1981 until January 26, 1985. The said agreement contains provisions,
inter alia, regarding the filing of grievances by employees and the
attendant procedural steps to be followed in the processing thereof.
3. Under date of April 9, 1981, and pursuant to Article 33 of the
Agreement, unit employee Verna Brady, a GS-5 staffing clerk, filed a
grievance with Respondent concerning her "Harassment, Insufficient
Training, and Unfair Evaluations." Certain specified articles of the
said Agreement were alleged in the grievance to have been violated by
the employer. Verna Brady requested, as relief in the grievance, that
the harassment cease; that Respondent render complete and proper
training; that the employer apologize and remove documentation; that
three unfair evaluations be corrected and resubmitted. The grievant
also designated Deborah Hailey, Union Steward, as her official union
representative in the matter. /3/
4. Between April 21, 1981 and June 18, 1981 Verna Brady's grievance
was processed through four steps of the grievance procedure pursuant to
the collective bargaining agreement. Meetings were held at each step
and management, in each instance, disagreed that Verna Brady had been
harassed, or that she received improper training. Respondent also
denied that it violated the Agreement re the evaluations which were the
subject of the grievance.
5. Following the fourth step grievance meeting on June 18, 1981, J.
D. Smith, Chief, Resources Management Division, sent a letter dated June
26, 1981 to Union representative Katy Brown. Although he declared that
no violation existed on the part of Respondent of the Agreement, Smith
stated he would be willing to move Verna Brady out of her present
position. Accordingly, he offered two positions to the employee as
follows:
(a) Supply Clerk - GS-5 - Facilities Management Branch. This
position required weight lifting which would necessitate Verna
Brady having a prior physical examination.
(b) Clerk-Typist - GS-3 - Facilities Management Branch.
In the aforesaid letter Smith also stated that his offer to move the
employee was in full and final settlement of the grievance; that "if
you accept this offer please advise me in writing by July 13, 1981, and
indicate which position Ms. Brady accepts." Verna Brady declined both
positions. In the one instance the work was not in line with her usual
duties and required much physical strength; in the other, the job was
not comparable to her customary one.
6. Subsequent to the foregoing offers being made, another position
was offered grievant Brady via the Union. Respondent indicated it would
give the latter a GS-4 job in the Collection Branch. However, since the
branch chief could not tell Verna where the position would be located,
she refused to accept same.
7. During the pendency of her grievance at the fifth step Verna
Brady became ill, and on August 19, 1981 she went home from work. She
did not attend the fifth step grievance meeting, but Union
representative Brown was present on Verna's behalf.
8. On or about August 20 James Brady, husband of the grievant,
telephoned William J. Lunsford, Chief of Labor Relations for Respondent.
Brady told Lunsford he was concerned about his wife, Verna, who was
very upset as a result of the events befalling her at work. Brady
stated he would like to talk to Lunsford and discuss the matter. /4/
The management official replied he would have to check and ascertain if
it was alright to confer with the grievant's husband. Accordingly,
Lunsford discussed it with Smith and Jerry Keith, Chief of Personnel,
and they decided it was permissible since Lunsford was not involving
himself in the grievance but only attempting to respond to Brady's
concern. Thus, a meeting was arranged for a few days later.
9. Several days after the telephone call James Brady prepared to
leave in the morning to meet the Chief of Labor Relations as scheduled.
Verna Brady inquired as to her husband's leaving the house. James told
his wife he was going to meet with Lunsford to discuss her work
situation; that perhaps a way could be found to resolve the matter so
Verna could overcome her illness caused by the pressure and tension.
Verna Brady replied that it would not help, and that it was against the
rules for Lunsford to say anything.
10. At the meeting between Brady and the management representative,
on or about August 21, the grievant's husband told Lunsford that his
wife felt she was being treated unfairly. Lunsford advised Brady that
the latter's wife had been making a number of errors; that Respondent
had to warn her re her performance; that unless she improved some
action to resolve the problem would be taken, either a removal or
downgrade. He remarked that the employer had offered Verna three
positions; that the GS-4 file clerk position with Collections Branch
was still open and if Verna would accept it, the performance problem
would be resolved and they could destroy any records of her errors and
counseling sessions. James Brady asked why his wife could not receive a
GS-5 and Lunsford replied it could not be done because of documentation;
that as soon as she qualifies in the new job Verna would have her 5
returned. The grievance itself was not discussed. /5/
Conclusions
General Counsel submits that the action taken by Respondent's
official, W. Lunsford, on or about August 20 when he met with the
grievant's husband was in direct contravention of the Statute. It is
contended that in dealing with James Brady and offering, or renewing an
offer of, a job to his wife via Brady, Respondent was attempting to
resolve the pending grievance; that such conduct constituted a
by-passing of the Union - Verna Brady's bargaining representative - in
violation of Section 7116(a)(1) and (5) of the Statute.
It is urged by Respondent that no attempt was made by Lunsford to
settle the grievance, but the meeting was merely to accommodate Verna
Brady's husband because of the latter's concern for his wife's health.
Further, that the management representative was not "dealing" directly
with James Brady; that he merely repeated an offer of a position which
had been offered previously to the grievant. Moreover, Respondent
insists that assuming arguendo the meeting was "technically improper,"
any violation is, in reality, de minimus in nature so that no remedial
order is warranted.
It is true that all communications between management and employees,
or their personal representatives, are not prohibitive. It was
recognized under Executive Order 11491, as amended - the predecessor to
the Statute herein - that the content of the communication and the
circumstances surrounding it must be considered. However,
communications which amounted to an attempt to by-pass the exclusive
representative and deal directly with employees, or which threaten a
promise benefit to employees were deemed violative of the Order.
National Aeronautics and Space Administration (NASA), Washington, D.C.,
A/SLMR No. 457, 4 A/SLMR 806; Department of the Navy, Naval Air
Station, Fallon, Nevada, A/SLMR No. 432, 4 A/SLMR 590, FLRC No. 74A-90.
The rights and responsibilities of the collective bargaining
representative were codified under the Statute. Section 7114 defines
these rights and duties and articulates clearly the obligation of an
agency to negotiate with union representatives concerning conditions of
employment. /6/ Failure to abide by this obligation results in a
violation of Section 7116(a)(5) of the Statute. Further, adherence to
this duty to bargain with the Union representing employees requires that
management not deal with employees in lieu thereof. The Authority has
acknowledged this requirement and frowned upon management by-passing the
exclusive representative in the matters involving personnel practices,
policies, or working conditions. (See and Compare Kaiserslautern
American High School et al., 9 FLRA No. 28 where direct dealing with
employees to gether information re employee morale was held not to
constitute a rejection of collective bargaining or an illegal by-pass of
the Union).
Applying the foregoing principle to the case at bar. I am
constrained to conclude that, in meeting with the grievant's husband,
management did by-pass the Union herein. While Respondent's intention
may have been laudable -- to offset Brady's concern for his wife's
strain and stress - its official went beyond proper bounds during the
discussion of Verna Brady's work performance. Thus, Lunsford did not
confine his talk to the reasons for management's evaluation of Verna's
performance. Rather did he offer, or renew an offer, of another job for
the grievant with the understanding that acceptance thereof would solve
the problem. Moreover, Lunsford agreed to destroy records of Verna's
errors if the employee took the GS-4 position in the Collections Branch.
Such an approach constitutes, in my opinion, an attempt to deal with
James Brady in derogation of its collective bargaining representatives.
Although the Union continued to represent Verna at all stages of the
grievance procedure, Lunsford offered to dispose of the entire "problem"
- which would have included a settlement of the grievance - via his
negotiation or discussion with James Brady. Negotiations of this type
should properly be made with the bargaining agent which has represented
Verna at the five steps of the grievance procedure. By dealing with her
husband Respondent has flouted its responsibility in this regard and run
afoul of the Statute.
Respondent argues that, assuming arguendo, it violated the Statute,
the violation is de minimus. In support of this argument Respondent
cites Norfolk Naval Shipyard, 4 FLRA No. 91. In the cited case the
employer's supervisor refused to allow a union steward to be released
from duty on his own recognizance to conduct union related business, a
long-standing practice. Upon being informed of his error, the
supervisor allowed the steward to be released. The Authority concluded
it would not effectuate the purposes and policies of the Statute to find
a violation or issue a remedial order in view of the immediate
rectification of the supervisor's conduct.
I do not view the situation herein to be analogous to that posed in
the Norfolk Naval case, supra. Direct dealings with someone other than
the bargaining representative over personnel matters, or working
conditions, which affect the working conditions of employees is not de
minimus. Such negotiations undermine the status of the union and are a
clear interference with the rights of employees under the Statute. They
are in marked contrast to an isolated act which was committed by the
supervisor in the cited case. The attempt by Lunsford to resolve the
matter (grievance) with the grievant's husband was not an isolated
incident which results in a brief interruption or where the improper
conduct was terminated immediately after it occurred. See Vandenberg
Air Force Base, et al., FLRC No. 74A-77, 3 FLRC 491 (1975). It went to
the heart of the responsibility to honor collective bargaining
obligations. Accordingly, and on the basis of the foregoing, I conclude
that in dealing with James Brady re the personnel matter of Verna Brady
and offering the employee a position through her husband to resolve her
pending grievance, Respondent violated Section 7116(a)(1) and (5) of the
Statute.
Accordingly, and in view of the foregoing, I recommend the Authority
issue the following:
ORDER
Pursuant to Section 2423.10 of the Federal Labor Relations
Authority's Rules and Regulations, and Section 7118 of the Statute, it
is hereby ordered that the Department of Treasury, Internal Revenue
Service, Memphis Service Center, shall:
1. Cease and desist from:
(a) By-passing the National Treasury Employees Union, the
exclusive representative of its bargaining unit employees, and
holding a meeting or discussion with employees, in respect to
personnel policies and practices, employee grievances, or
conditions of employment, without first notifying the National
Treasury Employees Union and affording it the opportunity upon
request to be present during such meeting or discussion.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Notify the National Treasury Employees Union, the exclusive
representative of its bargaining unit employees, of any proposed
meeting or discussion with any employees, in respect to personnel
policies and practices, employee grievances or conditions of
employment, and affording the National Treasury Employees Union an
opportunity upon request to be present during such meeting or
discussion.
(b) Post at its facility at the Memphis Service Center, 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 of the Memphis Service
Center, and shall be posted and maintained by him for 60
consecutive days thereafter in conspicuous places, including all
bulletin boards and places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Director to insure that such notices are not altered, defaced, or
covered by any other material.
(c) Pursuant to Section 2423.20 of the Authority's Rules and
Regulation, notify the Regional Director, Region IV, 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.
WILLIAM NAIMARK
Administrative Law Judge
Dated: December 21, 1982
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 TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT
WE WILL NOT by-pass the National Treasury Employees Union, the exclusive
representative of the bargaining unit employees, and hold a meeting or
discussion with employees, in respect to personnel policies and
practices, employee grievances, or conditions of employment, without
first notifying the National Treasury Employees Union and affording it
an opportunity upon request to be present during such meeting or
discussion. 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 Labor-Management Relations Statute. WE WILL
notify the National Treasury Employees Union, the exclusive
representative of the bargaining unit employees, of any proposed meeting
or discussion with any employees, in respect to personnel policies and
practices, employee grievances, or conditions of employment, and afford
it the opportunity upon request to be present during such meeting or
discussion.
. . . (Agency or Activity)
Dated: . . . By: . . . (Signature)
--------------- FOOTNOTES$ ---------------
/1/ In addition to the precedent relied upon by the Judge, see also
National Federation of Federal Employees, Local 1001 and Department of
the Air Force, Vandenberg Air Force Base, California, 15 FLRA No. 154
(1984) (Provision 1) (wherein the Authority found that the clear intent
of Congress was, with one stated exception in section 7121(b), to
preclude unit employees from being represented in the negotiated
grievance procedure by any person or organization other than the
exclusive representative).
/2/ The Authority agrees with the General Counsel's exception to the
use of the word "employees" in section 1(a) and 2(a) of the Judge's
recommended Order. The Order is modified to reflect the violation
found,
/3/ The parties stipulated that the Union's Chapter President, Katy
Brown and Deborah Hailey represented Verna Brady at all four steps of
the grievance procedure; that the Union participated at each meeting as
the employee's representative.
/4/ Brady was not aware, at that time, that his wife had filed a
grievance with Respondent.
/5/ The record reflects and it is not disputed, that the Union was
not informed beforehand of the meeting between James Brady and Lunsford.
/6/ Section 7114(a)(2) recites that the exclusive representative
shall be given the opportunity to be represented at any formal
discussion between one or more representatives of an agency and one or
more employees, or their representatives, re a grievance or condition of
employment. Since the Complaint does not allege that the meeting with
James Brady was a "formal" discussion and no such contention is made by
the General Counsel. I make no finding or conclusion in that regard.