24:0999(97)CA - IRS and NTEU -- 1986 FLRAdec CA
[ v24 p999 ]
24:0999(97)CA
The decision of the Authority follows:
24 FLRA No. 97
INTERNAL REVENUE SERVICE
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-40436
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority because the
Respondent filed exceptions to the attached Decision of the
Administrative Law Judge. The issue concerns whether the Respondent
violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute) by implementing a
program entitled "Instructior Opportunities with Historically Black
Colleges and Universities" (instructor program) without providing the
Charging Party prior notice and an opportunity to negotiate over impact
and implementation. The Respondent filed exceptions to the Judge's
decision; however, the General Counsel and the Charging Party filed
neither exceptions nor oppositions to the Respondent's exceptions.
II. Background
As the pertinent facts in this case are fully set forth in the
Judge's Decision, they will be discussed only as relevant. The Charging
Party is the exclusive bargaining representative for a unit of employees
who are among those given the opportunity to apply for the instructor
program. As described by the Judge, and undisputed, the Respondent
announced and implemented the instructor program without providing prior
notice to the Charging Party and the Respondent thereafter refused to
negotiate concerning the the instructor program. The Respondent
implemented the program in five of its seven regions. In the absence of
any Historically Black Colleges and Universities (HBCUs) with accounting
curricula, the other two regions did not participate in the instructor
program. Under the instructor program the Respondent continues to be
responsible for salary, leave administration, contributions to funds for
retirement, the insurance and health benefits, travel expenses, and
withholding of Union dues; however, instructors have a "supervisor" at
the institution where they are assigned. Individuals serve as
instructors anywhere from three to nine months and then return to their
position with the Respondent.
III. Judge's Decision
The Judge found that the Respondent violated section 7116(a)(1) and
(5), concluding that, while the instructor positions were outside the
bagaining unit, the Union had the right to bargain on behalf of unit
employees as to procedures used to implement the instructor program and
the impact upon adversely affected unit employees. Further, the Judge
found that the impact of the implemented change (the instructor program)
was more than de minimis, noting the poetential impact on employees
selected and possible workload impact on other employees. Finally, the
Judge rejected the contention that a duty to bargain existed concerning
the conditions of employment of unit employees while they were serving
as instructors.
IV. Exceptions
The Respondent argues that no duty to bargain exists with respect to
matters which apply to an employee who is on detail to a non-bargaining
unit position. The Respondent also excepts to the Judge's conclusions
regarding impact, particularly those concerning the possible impact on
the workload of other employees and the impact on selectees when they
return. Finally, Respondent excepts to the Judge's statement that the
parties' negotiated agreement might cover employees while detailed to
serve as instructors.
V. Analysis
We find in agreement with the Judge, that the Respondent was
obligated to give the Union prior notice and an opportunity to negotiate
over the impact and implementation of the instructor program and that
its failure to do so violated section 7116(a)(1) and (5). The
Respondent's exception alleging an absence of a duty to bargain with
respect to matters which apply to employees while on detail to
nonbargaining unit positions is inapposite: the Judge did not find that
the duty to bargain extended to matters concerning the employees while
on detail to such positions. Rather, she found that the obligation to
bargain was limited to the impact and implementation of the instructor
program as it affected the bargaining unit and bargaining unit
employees.
With respect to the Respondent's contention that any change in
conditions of employment was de minimis, we agree with the Judge that
implementation of the instructor program resulted in a change in
conditions of employment having an impact or a reasonably foreseeable
impact on bargaining unit employees which gave rise to a duty to
bargain. The Authority recently has reassessed and modified the de
minimis standard previously used to identify changes in conditions of
employment which require bargaining. Under the revised standard, we
place principal emphasis on such general areas of consideration as the
nature and extent of the effect or reasonably foreseeable effect of the
change on conditions of employment of bargaining unit employees.
Department of Health and Human Services, Social security Administration,
24 FLRA No. 42 (1986).
In this case we note that the instructor program was a continuing one
implemented and available to unit employees in five of the Respondent's
seven regions. While generally deemed by all to be beneficial to the
ccareer of employees selected for participation, it had the effect of
removing those employees from their work with the Respondent for three
to nine months. Given the extended nature of such absences we find it
reasonable to conclude that the program could have a foreseeable impact
on the workload of remaining employees as well as on the selected
employees' ability to perform their duties upon return to their
bargaining unit positions. Additionally, inasmuch as the record reveals
that selection for participation in the instructor program was
consisdered by employees, in general, to be desirable and career
enhancing, a conclusion that actions related to such selection could
have a foreseeable impact on bargaining unit employees is reasonable.
We find that the Judge's conclusion that it was "reasonably
foreseeable" that implementation of the instructor program would have an
impact on bargaining unit employees the nature and extent of which would
require bargaining is supportable. We reject the Agency's argument to
the contrary.
Finally, we find it unncecessary to pass upon the Agency's exception
to the Judge's statements regarding the applicability of the parties'
negotiated agreement. A determination of the extent to which the
negotiated agreement may be applicable is not necessary to conclude that
the Respondent's actions in implementing the instructor program violated
section 7116(a)(1) and (5) of the Statute. Moreover, the Judge did not
rely on any provisions of the negotiated agreement to support her
conclusions that the Respondent had violated the Statute.
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the
Judge made at the hearing, find that no prejudicial error was committed,
and affirm those rulings. We have considered the Judge's Decision and
the entire record, and adopt the Judge's findings, conclusions and
recommended Order only to the extent that they are consistent with our
decision.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations and section
7118 of the Federal Labor Management Relations Statute, it is hereby
ordered that the Internal Revenue Service shall:
1. Cease and desist from:
(a) Failing and refusing to give notice to the National
Treasury Employees Union, and affording it an opportunity to
bargain, to the extent consonant with law, before implementing any
program that adversely affects any employees for whom it is the
exclusive representative.
(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 of the
proposed implementation of any program that adversely affects
employees for whom it is the exclusive representative and, prior
to implementation of any such program, afford the Union an
opportunity to bargain concerning it, to the extent consonant with
law.
(b) Bargain, upon request, with the Union over procedures which
management will use in implementing the Program entitled
"Instructor Opportunities with Historically Black Colleges and
Universities" and appropriate arrangements for employees it
represents and who are adversely affected by the program.
(c) Post in every region where it implemented the program
entitled "Instructor Opportunities with Historically Black
Colleges and Universities" copies of the attached Notice to All
Employees on forms to be furnished by the Regional Director,
Region III of the Federal Labor Relations Authority. Upon receipt
of such forms they shall be signed by the Regional Commissioner
and shall be posted and maintained for sixty (60) consecutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily
posted. The Regional Commissioner shall take all reasonable steps
to insure that such notices are not altered, defaced, or covered
by any other material.
(d) Pursuant to 5 CFR section 2423.30, notify the Regional
Director, Region III, in writing, within 30 days of the date of
this Order as to what steps have been taken to comply herewith.
Issued, Washington, D.C. December 31, 1986.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee, 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 fail or refuse to give notice to the National Treasury
Employees Union and afford it an opportunity to bargain, to the extent
consonant with law, before implementing any program that adversely
effects any employees for whom it is the exclusive representative.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce any of our employees in the exercise of their rights assured
by the Federal Service Labor-Management Relations Statute.
WE WILL notify the National Treasury Employees Union of the proposed
implementation of any program that adversely affects employees for whom
it is the exclusive representative and, prior to implementation of any
such program, afford the Union an opportunity to bargain concerning it,
to the extent consonant with law.
WE WILL bargain, upon request, with the National Treasury Employees
Union, over procedures which management will use in implementing the
program entitled "Instructor Opportunities with Historically Black
Colleges and Universities" and appropriate arrangements for employees it
represents and who are adversely affected by the program.
. . . (Activity)
Dated: . . . By: . . . (Signature) (Title)
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 of the Federal Labor Relations Authority, Region III, whose
address is: 1111 18th Street, NW., Room 700, P.O. Box 33758,
Washington, D.C. 20033-0758, and whose telephone number is : (202)
653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-40436
INTERNAL REVENUE SERVICE
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party/Union
Nancy J. Crawford,
For the Respondent
Patricia Eanet Dratch,
For the General Counsel
Federal Labor Relations Authority
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1191, 5 U.S.C. 7101 et seq.
(1982), commonly known as the Federal Service Labor-Management Relations
Statute, and hereinafter referred to as the Statute, and the rules and
regulations issued thereunder and published at 5 CFR 2411 et seq.
Pursuant to a charge of unfair labor practices filed on June 8, 1984,
by the Charging Party (also referred to as NTEU or the Union), the
Regional Director of Region III of the Federal Labor Relations Authority
(hereinafter, the Authority) investigated and, on July 25, served the
complaint initiating this proceeding.
The complaint alleges that Respondent implemented a program affecting
bargaining unit employees "without providing the Union prior notice and
an opportunity to negotiate over the impact and implementation of this
change in bargaining unit employees' working conditions" (G.C. Exh.
1(c), para. 7). /1/ The program is entitled "Instructor Opportunities
with Historically Black Colleges" (hereinafter referred to as the
Program). The complaint alleges that this unilateral implementation
violated sections 7116(a)(1) and (5) of the Statute. /2/
Respondent admits that it implemented the Program, in or about March
1984, but denies that this program "affected a change in bargaining unit
employees' working conditions, affected bargaining unit employees or
required notice to negotiate over impact and implementation" (G.C. Exh.
1(e), para. 7). Respondent denies violating the Statute.
A hearing was held on October 23, 1984 in Washington, D.C. The
parties appeared, adduced documentary evidence, and examined witnesses.
Briefs were filed by the General Counsel, on November 21, and by the
Respondent on November 23. Based upon the record made in this case, my
observation of the demeanor of the witnesses, and the briefs, I enter
the following findings of fact and conclusions of law and recommend the
entry of the following order.
Findings of Fact
1. At all times material herein, the Union is and has been a labor
organization and Respondent, an agency, within the meaning of sections
7103(a)(4) and (3), respectively, of the Statute.
2. At all times material herein, the Union has been certified "as
the exclusive representative of all professional and nonprofessional
employees of Internal Revenue Service, district, region and National
Office, excluding professional employees of the North Atlantic Regional
Office, management officials, supervisors, confidential employees, all
employees of the Criminal Investigation Division, all employees engaged
in Federal Personnel work in other than clerical capacity, and guards."
See Jt. Exh. 1.
3. At all times material herein, the following persons occupied the
positions set opposite their names and have been and are supervisors or
management officials, within the meaning of sections 7103(10) and (11)
of the Statute, and agents of Respondent also referred to herein as IRS:
Paul D. Howland -- Acting Chief, Labor Relations Branch,
Washington, D.C.
Arleen Lopes -- Labor Relations Specialist, Washington, D.C.
Jean Henry -- Central Region Coordinator of Historically Black
Colleges and Universities
4. Peter Stehmer, a Tax Administration Advisor for IRS, was
assigned, approximately one and one-half years ago, as National
Coordinator for the Historically Black Colleges and Universitites (HBCU)
faculty support initiative through the Tax Administration Advisory
Services (TAAS). This Program is a result of Executive Order 12320
signed by President Reagan on September 15, 1981. This Executive Order
addresses increased participation by HBCU in federally sponsored
programs. The purpose of this Executive Order is to advance the
development of human potential by strengthening the capacity of HBCU to
provide education to overcome the effects of discriminatory treatment.
The program seeks to identify, reduce and eliminate barriers which may
have unfairly resulted in reduced participation by blacks in, and
reduced benefits received by blacks from, federally sponsored programs,
5. The Intergovernmental Personnel Act (IPA) of 1970, Public Law
91-648, 91st Congress, S. 11, January 5, 1971, is used to implement the
HBCU program. The IPA creates a contract between the educational
institution and the IRS to provide instruction at the school. See R.
Exh. 3. The IRS employee assigned to perform the instruction is not a
party to the contract. The IPA involves an exchange of expertise
between government agencies and public or private institutions,
including educational institutions. Many aspects of IPA assignments are
governed by regulations published by the Office of Personnel Management.
Through the HBCU Executive Order, IRS can provide assistance to
educational institutions by furnishing instructors on a nonreimbursable
basis. Previous assistance was reimbursable. The purpose of the
Program is to lend instructional assistance in tax and accounting to the
educational institution and to afford the IRS an opportunity to recruit
qualified students for its positions.
6. In March 1984, Mr. Stehmer and Linda Martin, Chief Problem
Resolution Staff, met with David Goldberg, Chief, Performance Evaluation
and Promotion Programs Section, Employment Branch, Patricia Francis,
Chief of Affirmative Action, Equal Employment Opportunity, and Ms.
Lopes, to discuss the development of this Program. Ms. Lopes was there
"to look at any potential impact on bargaining unit employees so that if
it was appropriate to notify the union and to bargain that that would be
done" (Tr. 92). Ms. Lopes left the meeting to discuss the matter with
John Rubin, a Labor Relations Specialist in the Labor Relations Branch,
Contract Administration Section, "the resident expert on bargaining unit
status" (Tr. 94-95). Mr. Rubin made the judgment that the employees
assigned by IRS as instructors at a HBCU would not be in the bargaining
unit. He made his judgment on the basis of being given "a broad
description of the program, a broad description of the instructor
position" (Tr. 81), "(j)ust the broad facts of the program, of our
employees volunteering to teach at historically black colleges and their
jobs there and a little bit of the selection process in that the -- at
least as far as she has told me that they would be selected by the
colleges" (Tr. 82). This Specialist did not know that IRS selected the
employees to be interviewed by the HBCU. He did not know that IRS
continued to control their leave. Nevertheless, he testified that,
"regardless of anything," he would have come to the same conclusion
because the IRS was not in control of the day-to-day activities of the
employees at the HBCU (Tr. 84).
7. Not only does IRS control the leave of its employees and the
selection process by which a list of three employees is submitted to the
HBCU for final selection, IRS also requires the employees selected to
report all leave taken while at the HBCU to an IRS timekeeper. IRS and
the HBCU enter into an agreement which sets out the employee's position
title; designates the employee's immediate supervisor at the HBCU; and
lists the courses the employee is to teach. IRS bears all the costs of
the assignment. IRS continues to make salary payments and employer
contributions to funds for retirement, life insurance and health
benefits. IRS reimburses selected employees for travel expenses
incurred in connection with assignments tpo HBCU and provides them with
travel advances. Selected employees who are on union dues witholding
are continued in this status while assigned to the HBCU. Selected
employees, while assigned to the HBCU, earn seniority at their IRS jobs
and receive all notices of vacancies, promotions and training
opportunities and all technical updates and digests of IRS changes.
8. The IPA provides that agency employees assigned under it are
"(o)n detail" and "a temporary assignment" (R. Exh. 3). Regulations
promulgated under the IPA provide that: "The detailed employees pay,
allowances, privileges, rights, seniority, and other benefits are
preserved and remain in effect during the assignment" (R. Exh. 7, para.
3.3(b) . . . . "
9. Details of Respondent's employees to HBCU run anywhere from three
to nine months, after which the employee returns to his former IRS
position. IRS "does a lot of detailing" and has always treated detailed
employees "as members of the bargaining unit." See Tr. 23.
10. After the March 1984 meeting (see finding 6, above), Mr. Stehmer
advised the IRS regions to advertise, screen and refer employees to the
regional HBCU participating in the Program. The Program was implemented
nationwide with participation by five of the seven IRS regions. No
notice was given to the Union.
11. The Union's Assistant Director of Negotiations, Joseph Kaplan,
first learned of the Program in a phone call from the NYEU Chapter
President in Indianapolis, who had seen an IRS leaflet advertising it.
On May 8, 1984, Mr. Kaplan contacted Ms. Lopes concerning the Program.
In that conversation Mr. Kaplan requested negotiations and was informed
by Ms. Lopes that IRS would not negotiate with NTEU because the
positions were not bargaining unit positions. In that conversation Mr.
Kaplan requested IRS return to the status quo ante and provide NTEU with
an opportunity to negotiate. This conversation was confirmed in a
letter dated June 5, 1984, from Mr. Kaplan to Paul D. Howland. In a
letter dated June 26, 1984, Mr. Howland responded to Mr. Kaplan's letter
of June 5th. He reiterated IRS's position that the HBCU opportunities
were non-bargaining unit positions and that IRS had no obligation to
negotiate with the Union over the instructor opportunities. IRS did
indicate a willingness to "discuss" with the Union any "concerns"
involving the Program and "to the extent (it could), give them due
consideration." See Jt. Exh. 4). The Union subsequently filed the
charge leading to this proceeding.
12. In two of IRS's seven regions, there were no HBCU with
accounting curricula; and so those two did not participate in the
Program. In the other five, IRS representatives, in four, screened
between 10 to 25 applicants, in each region, and selected 3 to be
interviewed by the particular HBCU in that region. The HBCU made the
final Selection. In one region, the Southwest Region, the HBCU "right
up-front asked for a certain person" (Tr. 72); and no prescreening was
done of the applicants. Ultimately, five bargaining unit employees were
selected to participate in the Program out of the total of seven or
eight IRS employees who were detailed as Instructors to a HBCU. IRS
criteria for selection were, at least, a masters degree or a CPA, basic
instructor training, equal employment opportunity consciousness,
sensitivity awareness, and "meet-and-deal qualities," to help with
recruitment efforts (Tr. 66). Volunteers for the Program were
interviewed by panels of top IRS officials. The interviews lasted 35 to
45 minutes.
13. "(B)eneficial changes" resulted from the details to the Program
(Tr. 69). The Program Coordinator established that "if somebody teaches
for, let's say, six to nine months at an HBCU, and it certainly looks
good on your statement of accomplishment, so that would be a positive
type factor" with "potential benefits to the person in that detail" (Tr.
69-70). An "assignment" to an HBCU is "attractive" to employees and IRS
gets "many more applicants than (it) can handle" (Tr. 70). Selection as
an Instructor at a HBCU enhances promotional ability and demonstrates
management's confidence in the employee's ability to perform and enhance
the IRS's image with the public.
14. Two employees testified who had volunteered for the Program and
not been selected by the HBCU. Both received laudatory memoranda from
IRS's Regional Commissioner, Central Region. The Regional Commissioner
thanked them for their "interest" in the Program, and encouraged them to
continue to seek ways in which their talents could be used to further
other special programs. See G.C. Exh. 3 and 4.
15. The Union wished to negotiate such matters as the selection
techniques for the teaching positions insofar as they were within the
control of Respondent; the announcement to employees of the opportunity
for these positions, including what information it would contain and how
it would be distributed; what time period employees would have to
apply; the grievable rights for nonselected employees, and for selected
employees with pending grievances or grievances while at the HBCU; how
leave would be handled for the selected employees, including who to ask
for leave and the carryover; how a reduction in force would affect
selected employees insofar as it would concern bumping and retreat
rights and competitive areas; dues withholding for selected employees;
retraining for selected employees when they return to their former
duties; a moratorium on the selected employees' evaluation, after their
return and pending their becoming reacquainted with their duties, or
just a provision that management will consider that they have been away
on the detail when they next come up for evaluation; timely notice to
selected employees of promotional opportunities and an opportunity to be
interviewed; and access to union officers and stewards for selected
employees, while they are at their teaching posts. Even if the selected
employees were found to be outside the bargaining unit, while at their
teaching posts, the Union wished to negotiate "taking them out and
putting them back in" (Tr. 30).
16. Ms. Lopes conceded that, upon selection of an employee to serve
as an Instructor, "there could be additional work placed on the
remaining employees in that office" (Tr. 100-101).
Discussion and Conclusions
The General Counsel has established, by a preponderance of the
evidence, /3/ that Respondent violated section 7116(a)(1) and (5) of the
Statute when it implemented a program entitled "Instructor Opportunities
with Historically Black Colleges," without providing the Union with
prior notice and an opportunity to negotiate over the implementation
procedures and the impact upon adversely affected, bargaining unit
employees.
1. While unit employees selected for the Instructor position do not
remain in the bargaining unit while actually serving at the educational
institution, as will be discussed in part 2, below, the Union does have
the right to bargain on their behalf, and on behalf of all unit
employees, as to procedures used to implement the Program and the impact
upon adversely affected unit employees, while serving in the unit. See
section 7106(b)(2) and (3) of the Statute /4/ and Internal Revenue
Service, 13 FLRA 366 (1983).
Impact that is actual or reasonably foreseeable, and "results in a
more than de minimis impact," triggers the bargaining obligation. See
Internal Revenue Service, 16 FLRA 845, 846 (1984). Here, the impact is
felt by nonselected, unit employees in that their work record will not
contain this teaching opportunity. Respondent's Program Coordinator
conceded that selection as an Instructor is a beneficial type of
accomplishment with potential benefits to the detailed person; and this
is an understatement. For example, Respondent's Regional Commissioner
for the Central Region wrote laudatory memoranda to unit employees who
volunteered and were not even selected, ultimately, by the educational
institution. Receiving praise from the top management official in an
IRS region surely will enhance an employee's promotion potential. And
being actually selected as an Instructor would surely enhance it even
more. Such enhancement of promotional ability, or missing the
opportunity for it, cannot be dismissed as a de minimis matter. Thus,
such matters as how the announcement of this opportunity is made, and to
whom, and what time period the employees have to apply, are procedures
which the Union, legitimately, wished to negotiate. See finding 15,
above.
It is also reasonably foreseeable that the workload of unit employees
could be increased by the absence of the selectee for a period that
could extend for nine months.
And an adverse impact is also reasonably foreseeable as to selectees
returning to their IRS positions after an absence of as long as nine
months. Although a selectee returns to his or her same IRS "position,"
there is no guarantee that the return will be to an IRS position in the
same unit, under the same supervisor. A selectee, after nine months,
may need some refresher training upon return to his or her former
position. A reduction in force could take place during a selectee's
absence which might have affected the selectee's bumping and retreat
rights. These are the types of adverse impacts which the Union might
wish to negotiate on behalf of the selectees, upon their return from the
educational institutions. See finding 15, above.
Taken together, these impacts cannot, fairly, be denominated as
"trivial, insignificant, speculative, opinion, or at most, de minimis,"
as Respondent argues. See R. Br. 28. Decisions of the Authority cited
by Respondent, wherein a de minimis impact was found, are factually
distinguishable and of little assistance in resolving the issues here.
In Department of Health and Human Services, Social Security
Administration, Chicago, Chicago Region, 15 FLRA No. 174, 15 FLRA 922,
924 (1984), cited at page 21 of Respondent's brief, a change merely
separated a review from an authorization function of Claims
Representatives, with no effect on grade qualifications, work functions,
or other working conditions, and did not change the way reviews were
distributed, fraud investigations were conducted, or errors reported to
supervisors.
The decision in Office of Program Operations, Field Operations,
Social Security Administration, San Francisco Region, 5 FLRA No. 45, 5
FLRA 333 (1981) cited at pages 21, 26 and 28 of Respondent's brief, is
more factually close, but still distinguishable. In that case, one
employee was temporarily detailed, for the three or four months; and
six volunteers took turns in performing his field duties, which they
enjoyed and had previously done under an established past practice;
their workload was not increased; their duties were the same; and
their working conditions were unchanged. Only one volunteer left the
office on any particular day and the procedure was in effect only three
days a week. The work of the volunteer, on his or her day in the field,
was diffused among 10 others and a supervisor, who took over when the
workload in the office became heavy.
In Department of Health and Human Services, Social Security
Administration, Bureau of Field Operations, San Francisco, California,
12 FLRA No. 30, 12 FLRA 108, 115 (1983), some 100-120 employment cases
were transferred to one office, but they were to be worked into the
workload, of primarily one employee, but only "as she had time," with no
consequences for late processing.
2. It is well established that an agency has no duty to bargain as
to employees or positions outside the bargaining unit. See American
Federation of Government Employees, National Council of Social Security
Administration, Field Operations Locals, AFL-CIO (hereinafter, AFGE), 17
FLRA 11, 12 (1985), wherein the Authority held that union proposals were
nonnegotiable because they concerned agency employees while they were
detailed to agency Depot Collections Centers; and it was unrefuted that
the Union did not hold exclusive recognition for employees so detailed.
Here, of course, the Union does refute management's allegation that
the selectees are outside the bargaining unit. Looking at the
collective bargaining agreement between the parties, it is seen that it
simply states coverage for "all professional and nonprofessional
employees of Internal Revenue Service . . . . " See finding 2, above.
Respondent concedes that the selectees for the Instructor positions
remain "employees of Internal Revenue Service." See R. Br. 11, 16 and
18. Thus, the contract itself appears to be sufficiently broad to cover
the selectees while on duty at the educational institutions; and I note
that Respondent feels unsure enough of its contrary position that it
continues dues-withholding of union members while detailed to the
educational institutions. See finding 7, above. Respondent relies on
Article 7 of the contract to support its position. But this Article,
dealing with "Promotions/Other Competitive Actions" also seems
sufficiently broad to cover these details, in that it covers "all
competitive promotions to bargaining unit positions and certain other
placement actions as set forth in Section 2," (Jt. Exh. 1, Section 1,
page 5, emphasis added). Section 2 of Article 7 sets forth specific,
placement actions to which the Article does not apply and then states it
will apply "to all other placement actions" (Jt. Exh. 1, Section 2B,
page 5). Placement in an educational institution is not specifically
excluded. And the manner in which IRS screened the applicants for the
Instructor positions certainly sounds "competitive" enough to qualify as
an Article 7 placement. See finding 12, above.
However, Respondent also relies upon language in the Statute itself
and, particularly, section 7103(a)(2)(A) which defines an "employee" as
"an individual employed in an agency;" section 7103(a)(3) which defines
an "agency" as "an Executive Agency;" section 7103(a)(12) which defines
the "collective bargaining" which a union may undertake on behalf of
employees as applying to "employees in an appropriate unit in the
agency" and "with respect to the conditions of employment affecting such
employees;" and section 7106(a)(14) which defines "conditions of
employment" as meaning "personnel policies, practices, and matters,
whether established by rule, regulation, or otherwise, affecting working
conditions."
While not free from doubt, I believe that Respondent is probably
correct in arguing that the Statute was not intended to apply to IRS
employees while they are employed in educational institutions and come
under the control of those institutions, insofar as their day-to-day
activities are concerned. During these prolonged details, many of the
conditions of employment about which the Union might wish to bargain are
not within the control of IRS, for example, changes in office
facilities, parking and cafeteria privileges, hours of work, number and
size of classes, and deadlines on grading papers. Since IRS employees
selected as Instructors include nonbargaining unit employees (see
finding 12, above), any Union proposals potentially affecting these
nonbargaining unit employees would be outside the duty to bargain by
IRS. See AFGE, above and International Federation of Professional and
Technical Employees, AFL-CIO, NASA Headquarters Professional
Association, 8 FLRA 212, 215 (1982). The impracticality of the Union's
being thus able, effectively, to represent the Instructors while on
these details is persuasive that Congress did not intend for the
Statute's reach to extend to such situations, and that the statutory
language limiting coverage to employees "employed in an agency" should
be construed literally.
Ultimate Findings and Order
Respondent has violated section 7116(a)(1) and (5) of the Statute, as
alleged in the complaint.
Accordingly, and pursuant to 5 U.S.C. 7118 and 5 C.F.R. 2423.29, the
Authority hereby orders that the Internal Revenue Service shall:
1. Cease and desist from:
(a) Failing and refusing to give notice to the National
Treasury Employees Union, and affording it an opportunity to
bargain, to the extent consonant with law, before implementing any
program that adversely affects any employees for whom it is the
exclusive representative.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Notify the National Treasury Employees Union of the
proposed implementation of any program that adversely affects
employees for whom it is the exclusive representation and, prior
to implementation of any such program, afford the Union an
opportunity to bargain concerning it, to the extent consonant with
law.
(b) Bargain, upon request, with the Union over procedures which
management will use in implementing the Program entitled
"Instructor Opportunities with Historically Black Colleges" and
appropriate arrangements for employees it represents and who are
adversely affected by the Program.
(c) Post in every region where it implemented the Program
entitled "Instructor Opportunities with Historically Black
Colleges" copies of the attached Notice to All Employees on forms
to be furnished by the Regional Director, Region III of the
Federal Labor Relations Authority. Upon receipt of such forms
they shall be signed by the Regional Commissioner and shall be
posted and maintained by him or her for sixty (60) consecutive
days thereafter, in conspicuous places, including all bulletin
boards and other places where notices to employees are customarily
posted. The Regional Commissioner shall take all reasonable steps
to insure that such notice are not altered, defaced, or covered by
other material.
(d) Pursuant to 5 CFR 2423.30, notify the Regional Director,
Region III, in writing within 30 days from the date of this Order
as to what steps have been taken to comply herewith.
/s/ Isabelle R. Cappello
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: April 12, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) "G.C. Exh." refers to the exhibits of the General Counsel. Other
abbreviations used herein are as follows. "Tr." refers to the
transcsript. "Jt. Exh." refers to joint exhibits. "R. Exh." refers to
the Respondent's exhibits. "G.C. Br." refers to the brief of the
General Counsel and "R. Br." to that of Respondent. Corrections to the
transcript are made pursuant to 5 CFR 2423.19(r) and are attached to
this decision.
(2) 5 U.S.C. 7116(a)(1) and (5) provide as follows:
(a) For the purposes 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; . . .
(or)
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter . . . .
(3) This is the statutory burden of proof. See 5 U.S.C. 7118(a)(7)
and (8).
(4) Section 7106 provides in pertinent part, that:
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating -- . . .
. . .
(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by such
management officials.
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 fail or refuse to give notice to the National Treasury
Employees Union and afford it an opportunity to bargain, to the extent
consonant with law, before implementing any program that adversely
affects any employees for whom it is the exclusive representative.
WE WILLL NOT in any like or related manner, interfere with, restrain,
or coerce any of our employees in the exercise of their rights assured
by the Federal Service Labor-Management Relations Statute.
WE WILL notify the National Treasury Employees Union of the proposed
implementation of any program that adversely affects employees for whom
it is the exclusive representation and, prior to implementation of any
such program, afford the Union an opportunity to bargain concerning it,
to the extent consonant with law.
WE WILL bargain, upon request, with the National Treasury Employees
Union, over procedures which management will use in implementing the
Program entitled "Instructor Opportunities with Historically Black
Colleges" and appropriate arrangements for employees it represents and
who are adversely affected by the Program.
. . . (Agency or Activity)
Dated: . . . By: . . . (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region III,
whose address is: 1111-18th Street, N.W., Suite 700, P.O. Box 33758,
Washington, D.C. 20033-0758 and whose telephone number is: (202)
653-8500.