20:0051(7)CA - Treasury, IRS, and IRS, Houston District and NTEU and NTEU Chapter 222 -- 1985 FLRAdec CA
[ v20 p51 ]
20:0051(7)CA
The decision of the Authority follows:
20 FLRA No. 7
UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE
AND UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE,
HOUSTON DISTRICT
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 222
Charging Party
Case No. 6-CA-30311
DECISION AND ORDER
The 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 in its entirety. The General Counsel
and the Charging Party filed exceptions to the Judge's Decision and the
Respondent filed an opposition thereto.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order.
The Authority adopts the Judge's dismissal of that portion of the
complaint alleging that the Respondent unilaterally changed established
working conditions by prohibiting the wearing of jeans by employees in
the Centralized Service Branch (CSB) without first notifying and
bargaining with the Charging Party in violation of section 7116(a)(1)
and (5) of the Statute, /1/ on the basis that such allegation was
untimely and therefore barred by section 7118(a)(4) of the Statute. /2/
In this regard, the Authority notes, in addition to the findings relied
upon by the Judge, as follows: As referenced by the Judge, and amply
supported by the record herein, the policy prohibiting the wearing of
jeans by certain employees of CSB was announced by Respondent's
supervisors at open meetings of employees upon the commencement of
operations on November 15, 1982 and the Charging Party was invited to
have a representative attend those meetings. The record discloses that
thereafter, with rare exception, the rule against wearing jeans was
consistently enforced, and the May 5, 1983 incident by which the
Charging Party asserts it first learned of the policy was but a
continuation of the open and undisguised enforcement of this rule.
This, in addition to all the factors cited by the Judge, leads the
Authority to conclude, in agreement with the Judge, that the
Respondent's conduct did not preclude the Charging Party from filing the
charge within six months of the November 15, 1982 meetings, at which the
rule was announced. Accordingly, it is concluded that the charge in
this respect was untimely filed and the complaint as to this aspect must
be dismissed pursuant to section 7118(a)(4) of the Statute.
ORDER
IT IS ORDERED that the complaint in Case No. 6-CA-30311 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., September 10, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 6-CA-30311
Ronald F. Hood, Esq.
For the Respondent
Susan E. Jelen, Esq.
For the General Counsel
B. Craig Deats, Esq.
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 September 30,
1983, by the Regional Director for the Federal Labor Relations
Authority, Region VI, a hearing was held before the undersigned on April
3, 1984 at Houston, Texas. /3/
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101 et seq. (herein called the Statute). It is based
on a charge filed on July 5, 1983 by National Treasury Employees Union
and National Treasury Employees Union, Chapter 222 (herein called the
Union) against United States Department of Treasury, Internal Revenue
Service and United States Department of the Treasury, Internal Revenue
Service, Houston District (herein called Respondent).
The Complaint alleged, in substance, that: (a) since May 5, 1983 and
continuing to date, Respondent has refused to bargain in good faith with
the Union by unilaterally changing conditions of employment by
implementing a dress standard at its Centralized Service Branch of the
Houston District, without providing notice to the Union and an
opportunity to bargain re said change; /4/ (b) since on or about May 6,
1983 Respondent has refused to furnish the Union data requested by it on
said date relating to the aforesaid change in condition of employment,
which date was reasonably available and necessary for negotiation of
subjects within the scope of collective bargaining; (c) that the
aforesaid refusals were violative of Sections 7116(a)(1) and (5) and
7116(a)(1) and (8) respectively of the Statute.
Respondent's Answer, dated October 24, 1983, together with its
amendment thereto made at hearing, denied the material allegations of
the Complaint as well as the commission of any unfair labor practices.
On March 15, 1984 the Regional Director, Region VI, issued a subpoena
duces tecum directing the Respondent to furnish:
Books, records, recordings and transcriptions thereof,
memoranda, notes, reports, and any other documents showing a
record of events and/or statements by any person at a meeting of
the Centralized Service Branch conducted by Supervisor Betty Hill
on May 5, 1983.
Thereafter, on March 21, 1984 Respondent filed a petition to revoke
said subpoena duces tecum stating that the data sought constituted
intramanagement guidance, advice and counsel; that it did not relate to
the matter under investigation or in question in the proceeding.
General Counsel filed its opposition thereto, and thereafter the
Regional Director issued an order referring the matter to the chief
Administrative Law Judge for disposition.
No disposition having been made, the matter came before the
undersigned at the hearing for a filing thereon. The data subpoenaed
was submitted by Respondent for an in camera /5/ inspection. The
undersigned examined the data, which consisted of notes of a meeting
conducted by Betty Hill on May 5, 1983, and noted for the record that no
mention was made therein regarding the wearing or non-wearing of jeans
by employees. No reference to a dress code or standard was contained in
the notes. Since the allegation in the Complaint concerned an alleged
unilateral change in a dress code on May 5, 1983, the document was
deemed unrelated to the controversy. Accordingly, the undersigned
granted the petition to revoke said subpoena duces tecum. /6/
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed 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 adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein Respondent has recognized the
National Treasury Employees Union as the exclusive representative of all
professional and nonprofessional employees of the Internal Revenue
District Offices, Regional Offices and National Offices, with specified
exclusions.
2. At all times material herein Respondent and the National Treasury
Employees Union have been parties to a national collective bargaining
agreement covering employees in the aforesaid appropriate unit.
3. At all times material herein, National Treasury Employees Union,
Chapter 222, has been the local representative at the Houston, Texas
District Office of Respondent for the purposes of collective bargaining
and administration of the said collective bargaining agreement, as well
as representation of employees in the unit set forth above.
4. Article 39, Section 3A of the said national agreement, which
applies to the Respondent's Houston District, provides, in substance,
that the employer will give the NTEU National President advance notice
of any proposed changes in conditions of employment. Further, that
"normally the Employer will provide three weeks notice of such changes
and the Union will make any proposals it intends to make before the end
of the notice period".
Article 39, Section 3B of the said national agreement provides, in
substance, that where the Employer proposes to make a change in
employment conditions limited to one appointing office (district,
region, or headquarters), the notice denoted in Section 3A may be given
to the local chapter president or joint council chairperson.
5. The Houston District of Internal Revenue Service was created as a
separate district in September, 1981. There are about 1500 employees
included therein and they comprise six separate offices. The Briarpark
location employs about 700 employees covering classification of revenue
agents, revenue officers, office collection people, office auditors, and
executive officials.
6. Also located within the Briarpark location is the Centralized
Service Branch (CSB) which employs about 80 individuals. This branch,
established in November, 1982, offers support to other IRS divisions,
primarily examination and collection. It processes reports from a
revenue agent based on his examination, as well as input information in
the terminal units relating to the taxpayer's tax account.
7. The CSB at Briarpark is located in a restricted area on the main
floor of the building. The door to CSB is closed but not locked. There
is only one entrance to its offices and one must stop at the desk to
obtain permission to enter. Visitors receive special permits to enter.
They are required to sign in and out of the area. While CSB employees
do not as a rule meet or deal with the public, there are about 6 or 7
teller operation employees in CSB who do deal with the public.
Occasionally, CSB employees may give directions to the public within the
building.
8. Upon the establishment of the Houston District Arturo Jacobs was
named District Director thereof. Michael Dolan was selected as Acting
Assistant Director. Jacobs reported to Houston in or about January,
1982. The NTEU Chapter 222 president was Tony Ovalle and John Agee was
the Chief NTEU steward. A series of meetings took place among those
principals regarding the adoption of a dress code for the Houston
District's employees. No such code regarding dress had been in
existence for this District prior thereto.
9. In about March, 1982 /7/ District Director Jacobs and Assistant
Director Michael Dolan met with Union representatives Tony Ovalle and
John Agee. There was some discussion concerning the attire of the
employees. All concurred that employees should dress as professionals,
but no specified dress code was agreed upon at that time.
10. Ovalle testified that in April he had his first informal meeting
with Jacobs regarding a dress code. He asserts that the Director stated
he did not like the way employees dressed. Ovalle agreed with Jacobs
since some individuals came to work wearing faded jeans, t-shirts and
sneakers, and he felt some dress code was needed. The Union president
further testified that both men agreed the employees in the Houston
District should be polled; that each individual manager would hold a
meeting with unit employees and discuss what constituted an appropriate
dress code for their particular area. /8/ Based on that information, a
dress code would be formulated.
The Union president also testified that both management and the Union
agreed that all non-contact /9/ employees could continue, as in the
past, to wear jeans; that Jacobs wanted male employees, who come in
contact with the public, to wear a shirt, tie and coat. Ovalle asserts
that later in June it was agreed between them that male employees who
come in contact with the public should wear a tie. Further, he
testified that as of that date the CSB had not yet been established;
/10/ that the non-contract employees at that time were those assigned to
the Westheimer (southwest) office involved in taxpayer service, as well
as the office collection branch.
11. Assistant Director Michael Dolan testified that he met with
Ovalle and Agee /11/ on April 5 at which time the dress code was
discussed. According to Dolan, management conveyed to the Union
representatives concern about the dress of its employees. Reference was
made to a revenue officer type person who ought to wear a tie and shirt
when dealing with the business community. Dolan was concerned about
people all wearing different apparel in the office branch. He further
testified that both the Union and management talked about things they
were interested in by way of shirts and ties, and the things they were
not interested in by way of jeans.
Dolan testified the Union shared the agency's view that proper attire
was an area which the District needed to do something about; that blue
jeans were mentioned, but the Union official did not register any
objections to employees not wearing jeans. He testified the Union did
not make a proposal that jeans could be worn by non-public contact
employees. /12/ Dolan also stated that public vs. non-public contact
never seemed to be a point of dispute at any meeting he attended. /13/
12. Jacobs testified that management began meeting with the Union
representatives in March. A discussion took place about a proposed
dress code since employees were wearing jeans and individuals in public
contact jobs were not wearing neckties or coats. It was proposed by
Jacobs that the Union assist the IRS in improving general appearance.
The Union concurred in the effort to improve the professional image by
adopting a dress code.
13. At a later meeting in April, according to Jacobs, the parties
agreed they did not want a formal dress code in writing which would
identify articles of clothing. With respect to jeans being worn, Jacobs
testified:
"Secondly, we did agree that no jeans would be permissible, and
in my opinion in any kind of job, not just public contact jobs . .
. "
Further testimony of Jacobs reflects that he and Assistant Director
Dolan stated at the meeting that jeans would not be permissible and that
the Union did not object. He also testified that the Union
representative agreed. /14/ The Director also stated that the Union
proposed two items: a community tie applicable to special procedures
and collection, and that the review staff and revenue agents dispense
with wearing a tie-- both of which proposals were not agreed to by
management. /15/
14. An LMR Committee Meeting was held on April 30. The minutes
thereof (Respondent Exhibit 2) refers to the draft memorandum (G.C.
Exhibit 4) submitted to the participants at that time re the desired
professional image. Further, the minutes reflect (last page) that
Jacobs asked the Union representatives to assist in ensuring that
employees dress appropriately, and that they agreed. The minutes also
state that a memorandum to all employees will go out the following week;
that managers will begin discussing the topic in group meetings,
soliciting employees' support.
15. A managerial staff meeting of the Collection Division was held
on May 4. The minutes of the meeting, presided over by Carl Speer,
chief of the Collection Division, reflect that the managers were told
that a dress code memo would be out in a few days. Further, the
managers were requested to meet with their staffs to discuss the memo
and invite the Union representatives. The chief stated that the
meetings with the staffs should be in the form of a general discussion
re the normal business standards of dress.
16. A memorandum dated May 7 was issued by Jacobs to all employees
entitled "Professionalism in Official Relationships" (Respondent Exhibit
1). In it he stated, inter alia, as follows:
" . . . it is important that we be cognizant of our need to
project a professional and business-like appearance.
Consequently, I have asked each manager to review with employees
the standards of attire appropriate to the work being performed in
their areas and in the professional community they serve . . . "
Jacobs testified that the dress code was implemented on May 7; that he
gave instructions to all the managers to begin having group meetings
throughout the district in all functions and all divisions to begin
implementing the dress code. /16/
17. A Collection Division Staff Meeting was held on May 19. The
minutes of the meeting (Respondent Exhibit 10) reflected that, at a
Division Chief's Conference, the dress code was discussed; that the
Division Chief would like feedback at the next staff meeting about the
reaction from the staff. /17/
18. The Examination Division held a staff meeting on June 7. The
minutes (Respondent Exhibit 13) reflected that the chief stated that
shirt and tie, with coat available, is the attire expected of the
employees meeting the public. Also, there was a reminder that blue
jeans are inappropriate.
19. In reporting on June 14 to all the Houston District Managers re
the all manager conference, the District Director stated that the office
attire memorandum was coordinated with NTEU officials and issued to all
employees on May 7 under the subject "Professionalism in Official
Relationships;" that group meetings by all managers with subordinates to
discuss the topic should be on-going. (Respondent Exhibit 3).
20. A staff meeting of the Houston District was held on July 13 at
which Jacobs presided. The minutes thereof (Respondent Exhibit 4)
reflect that the issue re men wearing ties was posed; that some
managers believed having unworn "community" ties in the area was
alright, while other managers disagreed. Further, they indicate that a
discussion ensured and it was established that the type of position
accepted by a person determines whether neckwear is appropriate--
namely, positions which call for public contact call for appropriate
neckwear. Male incumbents of such positions should wear neckties in or
out of the office. Acceptance of this request, it was declared by
management, would certainly not be costly, inconvenient, nor greatly
uncomfortable to employees.
21. Group Manager Lawrence Fagen, in a memo to his staff in group
1203 dated July 15, commented that on June 28 the proper business attire
was discussed by that group; that the consensus of the meeting led to
the determination that the appropriate attire for men is a coat and tie
for all field work, with a shirt, tie, slacks and a coat available for
office work. Jeans were deemed unprofessional. He stated that
employees were expected to comply with this standard starting with the
next business day. (Respondent Exhibit 14).
22. Both Ovalle and Agee attended an LMR Committee meeting on July
23. Jacobs and various division chiefs were also present. The minutes
thereof (G.C. Exhibit 5) reflect that the Union representative stated
that employees were expecting some guideline re a dress code; that
managers have different interpretations re proper dress and attire; and
that the Union would like clarification of what is expected.
Management commented that it planned to refine the unwritten code as
specifics arose; that males who occupy public contact positions are
expected to wear a dress shirt and tie, and have a coat available. A
"community tie" was not what management had in mind. Further, he stated
that the unwritten code is still open for refinement. The minutes
reflect management's comment that appropriate attire for females was
more difficult to define; that it was agreed sundresses, halter tops,
see-though blouses are inappropriate-- that pulic contact positions,
rather than what an employee plans to do on a particular day, dictate
the mode of dress. /18/
24. The CSB was officially opened on November 15. Two orientation
meetings were held by its chief, Carol Eldred, at which time she
addressed the employees. Union representative Ovalle was invited to,
and did, attend the orientation sessions. No discussion took place re a
dress code or attire to be worn by the staff. Later that day there was
a second set of meetings held by the unit managers with their respective
employees. /19/ Ovalle did not attend these meetings although he
acknowledged receiving notification that they would be held on November
15. Testimony by Arlene Kay, Chief of Resource Management Division CSB,
indicates that Eldred invited the Union to attend the meetings to be
held by managers with their employees.
25. At the individual managers' meetings held with their respective
groups of employees on November 15 there was mention made of the proper
attire to be worn. The managers stated to the employees that men were
to wear shirts and ties; that no jeans were to be worn except when
people were doing "dirty" work involving lifting, packing and the like.
/20/
26. Until at least May 5, 1983 some CSB employees wore jeans to
work. In some instances management counselled employees against wearing
them.
27. On May 5, 1983 group manager Betty Hill conducted a meeting of
her employees. CSB employees Nan Dunham and Barbara Kirkley, who
attended thereat, wore jeans. Employee Peggy Belcher asked Hill to
clarify the policy re jeans since she felt people were being treated
differently regarding such attire. Manager Hill stated that CSB
employees could not wear jeans. Subsequent thereto both Dunham and
Kirkley received counselling memos for wearing jeans. (General Counsel
Exhibits 9 and 10).
28. Shortly after the issuance of the counselling memos the two
employees spoke to Union steward Stacy McNeill and advised her that they
had been written up for wearing jeans. McNeill was also approached by
several other employees who complained about the dress code. She
attempted to speak with Hill but was unable to do so. McNeill then
informed Ovalle of what occurred, and the latter advised the steward to
request the minutes of the May 5 meeting held by Hill and ascertain what
was said re the dress code. Although she attempted to do so, McNeill
was unable to contact the manager.
29. Ovalle then made a written request to management for the minutes
of the May 5, 1983 meeting conducted by group manager Hill. Thereafter,
Richard P. Wallace, Chief, Classification, Employee and Labor Relations
Section, called Ovalle and informed the latter that the minutes were
silent regarding a dress code. Wallace also stated the minutes were
available to Ovalle. In a letter dated June 20, 1983 addressed to
Ovalle the labor relations official wrote as follows:
The pre-identified agenda topics for the meeting held May 5,
1983 in Centralized Services Branch (CSB), Terminal Unit by Betty
Hill were all work related. In the course of the meeting, an
employee queried Ms. Hill regarding wearing jeans to work. Ms.
Hill reiterated the dress code policies communicated in the CSB
orientation in November, 1982 and subsequently covered in the
Labor-Management Relations Committee Meeting held on May 16, 1983.
A copy of the meeting minutes is available in the Personnel
Branch for your review.
30. Ovalle testified he wanted the meeting minutes because he felt
there was a change in the dress code; that, as per his agreement with
Jacobs, all non-contact employees could continue wearing jeans as in the
past.
31. The notes of the meeting conducted by Betty Hill of CSB
employees on May 5, 1983, which were sought by the Union herein
thereafter, reflect that no mention was made of the wearing or
non-wearing of jeans by any employee. The notes concerned and dealt
with: "On Anloc's," "T-SIGNING," and "Request from batching."
32. Although offered an opportunity to review the meeting notes,
Ovalle did not do so. No further request was made by the Union for a
copy of the notes.
33. Soon after the May 5, 1983 meeting Ovalle raised the problem
with Jacobs re employees being written up for wearing jeans. He stated
this was contrary to their agreement since they were non-contact
employees. Jacobs denied any change and informed the Union official
that any employees who wore jeans would be written up by management.
The subject was discussed again at a LMR meeting on May 16, 1983, at
which time both Ovalle and Jacobs reiterated their positions re wearing
of jeans by employees.
34. The parties concede, and the record indicates, that the Union
never made any written proposals to management re a dress code;
further, that Respondent never gave a written notification to the Union
of its implementation date as to the dress code.
Conclusions
There are two issues for determination herein: (1) whether
Respondent implemented a dress code at the CSB, which unilaterally
changed conditions of employment, without notifying the Union and
affording it an opportunity to bargain thereon-- all in violation of
Section 7116(a)(1) and (5) of the Statute; (2) whether Respondent's
failure to furnish data requested by the Union was an infringement of
Section 7114(b)(4) and thus violative of Section 7116(a)(1), (5) and (8)
of the Statute.
(1) The condition of employment which was allegedly changed
unilaterally involved management's prohibiting the wearing of jeans by
all employees. This became applicable to CSB employees upon its
establishment on November 15, 1982. General Counsel concedes that the
parties agreed that all public contact employees would wear shirts and
ties but they could not wear jeans. Contrariwise, Respondent insists
that no distinction was ever made, or agreed upon by the parties, with
respect to these two groups-- and no employees (except when doing
"dirty" work) were allowed to wear jeans as per the agreement with the
Union.
One of the defenses interposed by Respondent is that the Complaint
herein is barred under Section 7118(A) of the Statute. It is contended
that the implementation of the dress code at CSB occurred on November
15, 1982; that since the charge was filed on July 5, 1983, it ran afoul
of the statutory provision which requires that no Complaint shall issue
based on an unfair labor practice occurring more than six months before
the charge is filed.
General Counsel's Complaint alleges a unilateral change and refusal
to bargain dating from May 5, 1983. It is maintained that the Union
never knew about the prohibition concerning all employees wearing jeans
until this date; that since it never received notification prior
thereto, the unfair labor practice occurred when the Union discovered
the change, i.e. May 5, 1983. Hence, it is argued, the charge was
timely filed.
Section 7118(a)(4) of the Statute provides:
7118. Prevention of unfair labor practices
(a)(4)(A) Except as provided in subparagraph (B) of this
paragraph, no complaint shall be issued based on any alleged
unfair labor practice which occurred more than 6 months before the
filing of the charge with the Authority.
(B) If the General Counsel determines that the person filing
any charge was prevented from filing the charge during the 6-month
period referred to in subparagraph (A) of this paragraph by reason
of--
(i) any failure of the agency or labor organization against
which the charge is made to perform a duty owed to the person, or
(ii) any concealment which prevented discovery of the alleged
unfair labor practice during the 6-month period, the General
Counsel may issue a complaint based on the charge if the charge
was filed during the 6-month period beginning on the day of the
discovery by the person of the alleged unfair labor practice.
The language of the Statute reveals that, except for circumstances
mentioned in 7118(a)(4)(B), conduct occurring more than six months
before an unfair labor practice charge is filed cannot serve as a basis
for the Complaint. It must be shown that the person filing the charge
was prevented by respondent from discovering the conduct within the six
month limitation period by concealment or by failing to perform a duty
owed to the charged party. /21/
Turning to the case at bar, it is clear that the dress code which
prohibited the wearing of jeans by all employees at CSB, including those
who do not come in contact with the public, was implemented on November
15, 1982. It was on that date, upon the establishment of CSB, that the
unit managers met with their respective employees and described the
appropriate dress code which also banned the wearing of jeans by
everyone. Record facts established to my satisfaction that Respondent's
announcement, via its managers, to employees on November 15, 1982 of
what was deemed proper attire constituted the implementation of the
dress standard which General Counsel alleges to be a unilateral change
in violation of the Statute. While some employees at CSB may have
continued to wear jeans, and thus flouted the standard, such disregard
may be deemed to impact upon the lack of its enforcement. Nevertheless,
the conduct or events which form the basis of the alleged unfair labor
practice occurred on said date. Thus, unless it can be determined that
the Union was prevented from filing the charge as set forth under
7118(4)(B)(i) or (ii), the charge herein should have been filed no later
than May 15, 1983. Unless otherwise so excused, the filing of the
charge herein on July 5, 1983 was untimely.
General Counsel insists that the Union was not notified of the fact
that jeans were forbidden until May, 1983 when several CSB employees
were written up for wearing them. It is contended that Respondent
failed to notify the Union prior to implementing the dress standard;
that it was not until May, 1983 that Ovalle discovered the new policy
which forbade all employees to wear jeans; and that the Union never had
knowledge of such standard theretofore. Accordingly, General Counsel
points to May, 1983 as the date of the alleged refusal to bargain by
reason of the implemented dress code which is deemed a unilateral change
by Respondent.
The undersigned is not persuaded that the Respondent prevented the
Union from filing the charge within the required time due to its failure
to perform any obligation owed the charging party, or by reason of any
concealment. Commencing in March, 1982 there were several meetings
which management held with the Union regarding the contemplated dress
code. It was known by Ovalle-- apart from the dispute as to what the
parties agreed upon-- that management did not want jeans to be worn by
anyone. This was stated by both Jacobs and Dolan at separate meetings
with the local Union president. Further, at the April 30, 1982 LMR
committee meeting, attended by Union representatives Ovalle and Agee,
management stated that unit managers would begin to hold meetings and
discuss appropriate dress with employees. Such meetings were held and,
at least in some instances, employees were told that no jeans would be
allowed.
It was understood by the parties, and not at issue, that the dress
standard would encompass CSB's employees. Upon the establishment and
opening of CSB, orientation meetings were held to which Ovalle was
invited. While no discussion was held re jeans thereat, the employees
were told at the subsequent meetings held by unit managers with their
employees on that date that jeans could not be worn. Union president
Ovalle attended the orientation sessions. Though invited, he did not
see fit to attend the individual unit meetings.
The foregoing convinces me that Respondent took no steps to prevent
the Union from filing the charge within six months of November 15, 1982.
It discussed the intended dress code for months with the Union
representative, made known its position as to appropriate attire for
employees, and invited them to attend the meetings on the date when the
dress standard was announced to CSB employees. The open and continuous
discussions with the Union re the proper clothes to be worn belies any
intent on the part of management to conceal from the Union the
implementation of the dress code. The various meetings with employees
to discuss the proper attire were neither secretive nor hidden from the
Union.
Assuming arguendo that no specific notification was given by
Respondent to the Union re the implementation of the dress code at CSB
on November 15, 1982, such failure to notify should not toll the six
month statute of limitations. A contrary conclusion would render any
alleged unilateral change as insulated from 7118(4). Since such a
charge involves a lack of notice to the bargaining representative, the
six month limitation period would, a fortiori, become inapplicable to
any unilateral change by an agency which is alleged as an unfair labor
practice. To construe Section 7118(4) as requiring that the charge be
filed within six months of the discovery of the alleged unfair labor
practice would, in my opinion, do violence to the intent of the Statute.
A more reasonable construction, and in accord with the statutory
language, warrants the conclusion that a charge must be filed within six
months of the conduct or action forming the basis of the unfair labor
practice. See Department of Health and Human Services, Social Security
Administration, Bureau of Field Operation (New York, N.Y.), 11 FLRA 600.
In the case at bar the alleged unfair labor practice occurred on
November 15, 1982 when the dress code was implemented at CSB by
Respondent. Since the charge was filed on July 5, 1983, it was untimely
filed under Section 7118(4) of the Statute with respect to the alleged
unilateral change by Respondent of a condition of employment. Thus, no
violation may be found in that respect by Respondent.
(2) It is expressly provided under 7114(b)(4) of the Statute
that, as part of its duty to negotiate in good faith, an agency is
obligated to furnish the bargaining representative data--
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining . . .
Case law, as developed in the public sector, has tracked the Statute.
Thus, where a union seeks information deemed relevant and necessary to
fulfill its representational duties, as well as administer a collective
bargaining agreement, it must be furnished by an agency. The data must,
however, meet the criteria set forth under 7114(b)(4)(A), (B) and (C).
Veteran Administration Regional Office, Denver, Colorado, 10 FLRA 453;
U.S. Customs Service, Region VII, Los Angeles, California, 10 FLRA 258.
In the case at bar the Union requested the minutes of the meeting
held by group manager Betty Hill on May 5, 1983. The record reflects
that Union president Ovalle sought this data because he believed there
was a change in the dress code; that if there was an announcement by
Hill that jeans could not be worn by any employees, it ran counter to
his agreement with Jacobs in April, 1982; and that it constituted a
unilateral change in conditions of employment. However, he was privy to
this information by reason of the fact that several employees in Hill's
unit who attended the meeting, Nan Dunham and Barbara Kirkley, related
to the Union what the manager had said at the meeting re the dress code,
i.e. no jeans to be worn by anyone. Moreover, that Hill stated this
policy to employees on May 5, 1983 at the meeting was confirmed by
management's letter to Ovalle on June 22, 1983.
Thus it is evident that the very information sought by the Union,
concerning what was stated by Respondent's manager as to wearing jeans,
had been imparted to it. Under those circumstances, I am not
persuaded-- apart from what the minutes did actually disclose-- that the
request would properly be the basis for requiring production of the data
sought herein. Since the Union learned that jeans were prohibited at
the meeting, which Ovalle deemed to be a change, it obtained the very
information which it expected to obtain from the minutes of the meeting.
Under these circumstances I am constrained to conclude the agency
should not be required to turn over the meeting notes /22/ of manager
Hill. In this respect note is taken of the decision rendered by Judge
Sternburg in Department of Defense, Department of the Navy, Charleston
Naval Shipyard, Case No. 4-CA-1159 OALJ 83-61 (March 4, 1983), affirmed
by the Authority without exceptions, May 6, 1983. In the cited case,
the union sought notes taken by a managerial employee at an
investigation of an employee for an alleged offense. Present at the
investigation were both the employee and the union's chief steward.
Judge Sternburg concluded that production of the notes was not necessary
for intelligent bargaining since the union had, within its possession,
the substance of the testimony of the employee who was examined. He
found no violation of Section 7114(b)(4) of the Statute. The rationale
is applicable to the instant matter. It would serve no purpose to order
Respondent to provide the very data which is already within the Union's
knowledge and which it sought in the first instance. In view thereof, I
would conclude Respondent was under no obligation to furnish the
requested information. /23/
It is also significant that the notes of the meeting, which were
recorded by Hill, contain no reference to a dress code, nor is any
mention made of jeans. They indicate the topics discussed, or to be
discussed, concerned "On Anlocs," "T-SIGNING," "Request from batching."
Neither do the notes refer to any particular employee or to any
infraction by an employee of a rule. In a similar situation the
Authority considered a case where the union requested a directive from
the Commanding General. The union believed the document contained
information pertaining to an employee's entitlement to a union
representative and time allowed for an employee to obtain a steward upon
being stopped for a random gate search. Such information was not
contained in the document. The Authority held that therefore the
requested document was not relevant and necessary within 7114(b)(4) of
the Statute, and the agency did not violate the Statute when it refused
to furnish same. Marine Corps Logistics Base, Barstow, California, 14
FLRA 772. Likewise, in the case at bar, the minutes or notes sought by
the Union contain no data which could be of any assistance to it in
respect to any discussion or bargaining over the alleged change in the
dress code. Further, since they do not bespeak of jeans, the notes are
not a "necessary" tool in the Union's representing employees who may be
allegedly aggrieved by the dress standard. Accordingly, I am convinced
that the said document is neither relevant nor necessary within the
meaning of Section 7114(b)(4) and the agency was not obliged to furnish
same.
By reason of the foregoing, I conclude that Respondent did not
violate the Statute when it failed to give the minutes or notes of
manager Hill to the Union herein. /24/
Having found that Respondent did not violate the Statute as alleged
herein, it is hereby recommended that the Authority issue the following
order:
ORDER
IT IS HEREBY ORDERED, that the complaint in Case No. 6-CA-30311 be,
and it hereby is, dismissed in its entirety.
WILLIAM NAIMARK
Administrative Law Judge
Dated: March 19, 1985
Washington, DC
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
* * * *
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/2/ Section 7118(a)(4) provides:
Sec. 7118. Prevention of unfair labor practices
* * * *
(4)(A) Except as provided in subparagraph (B) of this
paragraph, no complaint shall be issued based on any alleged
unfair labor practice which occurred more than 6 months before the
filing of the charge with the Authority.
(B) If the General Counsel determines that the person filing
any charge was prevented from filing the charge during the 6-month
period referred to in subparagraph (A) of this paragraph by reason
of--
(i) any failure of the agency or labor organization against
which the charge is made to perform a duty owed to the person, or
(ii) any concealment which prevented discovery of the alleged
unfair labor practice during the 6-month period,
the General Counsel may issue a complaint based on the charge if the
charge was filed during the 6-month period beginning on the day of the
discovery by the person of the alleged unfair labor practice.
/3/ Subsequent to the hearing Respondent filed with the undersigned a
motion to correct the transcript in certain respects. No objection
having been interposed, and it appearing that the corrections are
proper, the motion is granted.
/4/ At the hearing General Counsel moved to amend paragraphs 6, 8 and
9 of the Complaint. Respondent objected to the amendment of paragraph 8
which included the phrase "without providing the Union notice", which
allegation concerned the change made by Respondent. Although Respondent
objected, it offered no convincing support for its being prejudiced
thereby and the motion was granted. Paragraph 6 was amended to change
the alleged bargaining agreement from "multi-district" to "national" in
scope. Paragraph 9 was amended to include (e) and (f) by alleging that,
since May 6, 1983, Respondent has refused to furnish the requested
information, and that Respondent has, since May 6, 1983, failed to
comply with 5 U.S.C. 7114(b)(4) of the Statute. Respondent moved to
amend its Answer to admit paragraphs 6 and 7 of the Complaint, to deny
paragraphs 8 and all of 9. Said motion was also granted. (G.C. Exhibit
2 contains the changes and additions to the Complaint as allowed.)
/5/ The data is herewith forwarded to the Authority under separate
cover along with the transcript and exhibits herein.
/6/ The data subpoenaed is the same as sought by the Union from
Respondent in May, 1983. It forms the basis for the agency's alleged
failure to furnish same as required by 7114(b)(4) of the Statute. A
distinction may be made in respect, however, to the origin of the
request for the same data. Whereas the Union sought the information in
May, 1983 in connection with its representational duties, the data
sought by subpoena was for its production at the trial to support
General Counsel's case. Thus a basis for granting the petition to
revoke might not support an agency's refusal to furnish the same
information requested by the Union before the unfair labor practice
charge is filed.
/7/ Unless otherwise indicated, all dates hereinafter mentioned occur
in 1982.
/8/ G.C. Exhibit 4 is a draft of a memo addressed from Jacobs to all
employees entitled "Professionalism in Official Relationships." It
recites, inter alia, that Jacobs had asked each manager to review with
employees the standards of attire appropriate to the work being
performed in their areas and the professional community served. Ovalle
testified he received this memo sometime between April and June, 1982.
/9/ This term refers to employees at the IRS District who would not,
as a rule, come in contact with the public during their work hours. The
parties do not agree as to whether the CSB employees are to be deemed
"non-contact" employees.
/10/ It is not disputed that whatever dress code might be adopted, it
would apply to the CSB when established.
/11/ Chief steward Agee did not testify at the hearing.
/12/ Minutes of a staff meeting held on April 6, 1982 (Respondent's
Exhibit 5) refer to the "briefing" session held on April 5 with Ovalle.
They recite that the Union representative brought up the topic of dress
code at the session and appeared supportive of management's efforts to
improve the image of the Service.
/13/ During his testimony Dolan referred to several meetings held
with the Union. His use of the term "we said" or "we told the Union,"
in addition, does not make it clear that these comments re jeans and
contact versus non-contact employees were made at the April 5 meeting.
/14/ On cross-examination Jacobs testified that the Union did not say
they agreed to no jeans; that there was no objection from the Union or
no counterproposal-- just "expression of general agreement."
/15/ The parties are in substantial dispute as to whether Ovalle and
Jacobs agreed that the prohibition against wearing jeans should apply to
all employees. The Union official testified he finally agreed that all
employees who have contact with the public would not wear jeans.
Respondent's Director testified there was an agreement that all
employees (contact and non-public contact) were to be prohibited from
wearing jeans. A resolution as to this issue, i.e. the agreement
reached, will be discussed under "conclusions," infra.
/16/ Carl Speer testified that the Union was invited to attend
meetings with managers; that meetings be arranged so that Union steward
could attend each one.
/17/ A similar meeting was held with the Collection Division staff on
June 1, and the same comment made re feedback from the staff.
/18/ Jacobs testified that, at this point in time, perhaps everything
had not been clarified.
/19/ Several of Respondent's witnesses testified that Union steward
Benny Hicks was present at a unit meeting conducted by manager Claudia
Guzman on November 15. Hicks testified he was not present at any such
unit meeting; that he was conducting an audit at a taxpayer's place of
business in downtown Houston during the entire day. While the different
testimonies are conflicting, the undersigned does not believe it
necessary to resolve credibility in this instance in view of the
ultimate determination and conclusions re the sufficiency of
notification by Respondent to the Union concerning the dress code
implementation.
/20/ Testimonies were adduced as to particular meetings that were
held on such date with employees by managers Betty Hill (CSB Resource
Management Division), Doris Countryman (CSB unit manager), and Claudia
Guzman (CSB support unit).
/21/ See Home Committee Report (H.R. 11280)-- H.R. Rep. No. 95-1403,
95th Cong., 2d Sess., at 52-53(1978).
/22/ While the parties have referred to Hill's record as "minutes,"
it should be observed that they are labeled "meeting notes." Despite the
fact that no evidence appears as to whether they were prepared in
advance of the meeting, or how recorded, they have been treated herein
as having been made in the regular course of business as required under
7114(b)(4)(A) of the Statute.
/23/ This particular issue between the parties provokes comment that,
if not so irresolute, the parties could have avoided this litigation.
Firstly, the Respondent had little to suffer by disclosing the notes of
the meeting in view of the fact that they contain no information of any
significance to the Union. Neither were any privileged or secretive
details contained therein. Further, the Union could have availed itself
of the opportunity, offered by Respondent, to review the notes. In that
instance, it could have been assured that no mention was made of the
dress code, or jeans, and thus, foregone insisting upon its production.
Less adamant behavior by either party, less controversy.
/24/ An issue may well be posed for determination as a result of the
fact that management made the data available to the Union, and the
latter failed or refused to examine or review same. It raises the query
as to whether a union, under such circumstances, may properly fault an
agency for not furnishing the document to the bargaining agent. Had the
Union looked at the minutes, management may never have been called upon
to provide a copy to it. In view of the conclusions already reached,
the undersigned finds it unnecessary to resolve such issue.