27:0664(77)CA - IRS, Washington, DC and IRS, Denver District, Denver, CO and NTEU and NTEU Chapter 32 -- 1987 FLRAdec CA
[ v27 p664 ]
27:0664(77)CA
The decision of the Authority follows:
27 FLRA No. 77
INTERNAL REVENUE SERVICE
WASHINGTON, D.C. AND INTERNAL
REVENUE SERVICE, DENVER DISTRICT
DENVER, COLORADO
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 32
Charging Party
Case No. 7-CA-50641
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the Respondent to the attached decision of the Administrative
Law Judge. The General Counsel filed an opposition to the Respondent's
exceptions. The issue is whether, as found by the Judge, the
Respondent's refusal to bargain with the exclusive representative
concerning the impact of the detailing of bargaining unit employees
violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute).
II. Background
The record reflects that the National Treasury Employees Union and
the National Treasury Employees Union, Chapter 32 (referred to as the
Union) is the exclusive representative of certain of the Respondent's
employees including the employees who are the subject of this case. The
current national agreement (referred to as Nord II) has been in effect
since May 1985 and the current local supplemental agreement has been in
effect since April 1978.
On July 18, 1985, the Respondent advised the Union that it would
detail 18 Revenue Officers and two Tax Specialists (all referred to as
Revenue Officers) from various posts in metropolitan Denver to the
Automated Collection System (ACS) call site located 12-16 miles from
downtown Denver, for a period of 60 days, August 4 through September 27,
1985. On July 26 the Union submitted 10 bargaining proposals to the
Respondent concerning the detail. In response to the Union's request to
bargain concerning the detail, the Respondent took the position that it
was not under an obligation to bargain because the detail did not
constitute a change in past practice, policy or procedure and was in
accordance with the parties' negotiated agreement.
III. Judge's Decision
The Judge found that the detail of Revenue Officers to the ACS
constituted a change in conditions of employment. He also determined
that the Union did not waive its right to bargain on the impact and
implementation of the detail by the parties' prior agreements. The
Judge further found, applying the factors enumerated in Department of
Health and Human Services, Social Security Administration, Region V,
Chicago, Illinois, 19 FLRA 827, 830, 834-835 (1985) that the actual
impact and the reasonably foreseeable impact of the detail on the
employees was more than de minimis. The Judge concluded that all of the
proposals submitted by the Union were "negotiable" but he did not
dedtermine whether each of them is consistent with applicable laws and
regulations. He therefore concluded that the Respondent violated
section 7116(a)(1) and (5) of the Statute by rejecting the Union's
request to bargain and recommended that it cease and desist from such
conduct in the entire Denver District and to take certain affirmative
action. He did not order a status quo ante remedy as the General
Counsel did not request it.
IV. Position of the Parties
The Respondent excepts to the Judge's finding of a violation. It
contends that: 1) the detail of Revenue Officers to ACS did not
constitute a change and was in accordance with past practice; 2) the
Union waived its right to bargain on the detail; 3) the impact on the
detailed Revenue Officers was no more than de minimis; 4) the Judge
erred in concluding that the proposals submitted by the Union were
negotiable as appropriate arrangements for employees adversely affected
by the Respondent's implementation of the detail; and 5) the remedial
order should be limited to concern only the Respondent's Collection
Division facilities located in metropolitan Denver.
The General Counsel disputes the Respondent's exceptions.
V. Analysis
A. Change in Conditions of Employment
In agreement with the Judge, we find that the Respondent violated
section 7116(a)(1) and (5) of the Statute by rejecting the Union's
timely request to bargain concerning the impact and implementation of
its decision to detail Revenue Officers to the ACS. Thus, as the Judge
found, the implementation of the detail constituted a change in
conditions of employment. The Union's mere failure to request impact
and implementation bargaining on prior details of Revenue Officers,
standing alone, did not alter its statutory right to request bargaining
when a further detail was announced on July 18.
With respect to the Respondent's contention that the impact of any
change in conditions of employment was no more than de minimis, we agree
with the Judge that implementation of the detail of the Revenue Officers
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. In Department of Health and Human Services,
Social Security Administration, 24 FLRA No. 42 (1986), petition for
review filed sub nom. American Federation of Government Employees, Local
1760 v. FLRA, No. 86-1702 (D.C. Cir. Dec. 17, 1986), we reassessed and
modified the de minimis standard previously used to identify changes in
conditions of employment which require bargaining. We stated that in
order to determine whether a change in conditions of employment requires
bargaining, we would carefully examine the pertinent facts and
circumstances presented in each case; and that in examining the record,
principal emphasis would be placed 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. We also
stated that equitable considerations would be taken into account in
balancing the various interests involved; that the number of affected
employees and the parties' bargaining history would be given limited
application; and that the size of the bargaining unit would no longer
be applied.
In this case we note, as the Judge found, that 20 Revenue Officers
were detailed for 60 days. They came from all four offices within
metropolitan Denver. The detail resulted in increases of their commute
from home to post of duty ranging from 3 to 35 miles. Furthermore, the
detail altered the work schedules and lunch breaks of the Revenue
Officers. At their permanent post of duty they were on flexible hours
with 45 minutes for lunch; but at the ACS they were placed on the 8:00
a.m. to 4:30 p.m. shift with 30 minutes for lunch. Under these
circumstances, we find that the nature and extent of the effect and/or
reasonably foreseeable effect of the change on conditions of employment
of bargaining unit employees gave rise to a bargaining obligation.
B. Negotiability of Specific Proposals
We turn now to the question of the negotiability of the Union's
proposals. As previously indicated in section III, the Judge generally
found that the proposals submitted by the Union are negotiable, as a
necessary step to concluding that the Respondent violated section
7116(a)(1) and (5) by rejecting the Union's request to bargain.
However, the Judge did not make the requisite determinations to rule on
negotiability under the Statute: whether each of the specific proposals
is consistent with applicable laws and regulations. /1/
VI. Proposals
Proposals 1 and 5
Revenue Officers will be allowed to remain on the same tour of
duty that they are currently on.
Detailees will be given a 45 minute lunch break.
A. Positions of the Parties
Proposals 1 and 5 provide that the detailees would retain their work
schedules, including lunch breaks, while on detail to the ACS as opposed
to following the work schedules in effect at the ACS. The Respondent
argues that these proposals are inconsistent with provisions in existing
collective bargaining agreements. The General Counsel disputes this.
B. Analysis and Conclusion
Article 23, Section 2(H) of the national agreement in effect at the
time (NORD II) provided:
Employees . . . on detail will adhere to the tour of duty of
the organizational segment to which they are temporarily assigned.
In view of this provision, it appears that the dispute between the
parties as to the negotiabilaity of Proposals 1 and 5 is purely a matter
of differing and arguable interpretations of their collective bargaining
agreement. /2/ The appropriate avenue for resolution of the dispute
lies in the parties' grievance and arbitration procedures in the
negotiated agreement as opposed to unfair labor practice procedures.
See Department of Health and Human Services, Social Security
Administration and Social Security Administration Field Operation, New
York Region, 23 FLRA No. 62 (1986).
Proposal 2
No dress code, stated or implied, will be imposed on the
Revenue Officers.
A. Positions of the Parties
The Respondent argues only that because it had no intention of
imposing a dress code in conjunction with the detail and had so informed
the Union, this proposal was meaningless and not worthy of negotiation.
The General Counsel states that by the proposal the Union sought
contractual assurances for the detailees that they would not be
subjected to a dress code. It contends that the proposal was negotiable
and would not interfere with any management rights.
B. Analysis and Conclusion
The Respondent's assertion that the proposal was "meaningless" does
not provide a basis for finding the proposal nonnegotiable. In view of
the relationship of the proposal to the details and in the absence of
any claim or showing that this proposal conflicts with law,
Government-wide regulation or any agency regulation for which a
compelling need exists, we conclude that the proposal is negotiable.
Compare Division of Military and Naval Affairs, State of New York,
Albany, New York and New York Council, Association of Civilian
Technicians, 15 FLRA 288 (1984), affirmed sub nom. New York Council,
Association of Civilian Technicians v. FLRA, 757 F.2d 502 (2d Cir.
1985), cert. denied, 106 S.Ct. 137 (1985), in which the Authority found
based on the circumstances present in the case that a requirement that
employees wear the military uniform constituted an exercise of
management's right under section 7106(b)(1) to determine the methods and
means of performing work. Also, compare, American Federation of
Government Employees, Local 217 and Veterans Administration Medical
Center, Augusta, Georgia, 21 FLRA No. 13 (1986) in which the Authority
found based on the circumstances present in the case that a uniform
wearing requirement constituted an exercise of the right under section
7106(a)(1) to determine internal security practices.
Proposal 3
Mileage will be paid consistent with the regulations.
A. Positions of the Parties
The Respondent argues only that this proposal was unnecessary in view
of the fact that it paid mileage and had informed the Union that mileage
would be paid at a Labor-Management Relations Committee Meeting. The
General Counsel asserts that by the proposal the Union merely sought to
reduce a verbal commitment to writing.
B. Analysis and Conclusion
The Respondent's assertion that this proposal was "unnecessary" does
not present a basis for finding the proposal nonnegotiable. Compare
Department of Health and Human Services, Region VII, Kansas City,
Missouri, 14 FLRA 258 (1984), in which the Authority found that an
agency was not relieved of the obligation to enter into a written
agreement by virtue of the fact that it had apparently abided by
commitments made verbally. Absent any other claim or apparent basis for
finding this proposal nonnegotiable we find that Proposal 3 is within
the duty to bargain. /3/
Proposal 6
Adequate training will be provided.
A. Positions of the Parties
The Respondent argues that the proposal was not within the duty to
bargain because: (1) the subject of training is "extensively covered"
in NORD II; (2) it had assured the Union at a Labor-Management
Relations Committee Meeting that training would be provided; and (3) it
had, in fact, provided training to the detailees. The General Counsel
asserts that this proposal constitutes a general nonquantitative
standard and does not dictate the content, type or duration of the
training to be provided. Additionally, the General Counsel contends
that in view of the fact that the Respondent had already decided to
provide training the proposal did not interfere with its right to assign
work.
B. Analysis and Conclusion
The Respondent's arguments do not present a basis for finding this
proposal nonnegotiable. The Respondent argues that the subject matter
of the proposal is covered by NORD II, but does not argue that this
proposal is either inconsistent with NORD II or that NORD II actually
bars negotiation over it. Its other arguments are identical to those
presented and rejected in conjunction with Proposal 3. We find that
this Proposal is like Proposal 3 in American Federation of Government
Employees, Local 3231 and Social Security Administration, 22 FLRA No. 92
(1986), and is negotiable only as an appropriate arrangement under
section 7106(b)(3).
The proposal in Social Security Administration required the agency to
provide "(a)dequate training for satisfactory performance in the new
specialty(.)" The Authority concluded that the proposal conflicted with
management's right to assign work but was negotiable as an appropriate
arrangement under section 7106(b)(3). Proposal 6 in this case also
conflicts with the right to assign work.
Like Social Security Administration, however, we find that Proposal 6
is a negotiable appropriate arrangement for employees adversely affected
by the details. The record reflects that the work to be performed by
the employees during their details differed from the work they usually
performed. In fact, the Respondent recognized this by providing 2
weeks' training for the detailees, training which was apparently
shortened because of the expertise of the employees involved. In these
circumstances, we conclude that the Proposal does not excessively
interfere with the Respondent's right to assign work and is negotiable.
Proposal 7
The work will be equally divided between those detailed.
A. Positions of the Parties
In its Post-hearing Brief the General Counsel indicated that this
proposal sought to ensure that tedious or "dog work" would be equally
divided so that no one employee would be assigned only "dog work".
Post-hearing Brief at 8. The Respondent contends that this proposal is
nonnegotiable because it (1) interferes with its right to assign work
and (2) would be impossible to administer. The General Counsel argues
that this proposal is only a general, nonquantitative standard similar
to "fair and equitable" and does not require that equal amounts of all
types of work be distributed.
B. Analysis and Conclusion
We find that the General Counsel's argument that the proposal is only
a general nonquantitative standard does not comport with the plain
language of the proposal or his representation as to the specific intent
of the proposal. Rather it appears that the proposal would require that
a particular type work ("dog work") be distributed in a particular
manner (equally). We conclude that this proposal is materially
identical to Proposals 5 and 6 in Internal Revenue Service and
Brookhaven Service Center, 12 FLRA 19 (1983). Based on the reasons
stated in that decision, we conclude that this proposal interferes with
the Respondent's right to assign work and is not within the duty to
bargain.
Proposal 8
The parties agree that those detailed will not be adversely
affected because the work is lower graded work. This applies to
time in grade, promotions, and evaluations.
A. Positions of the Parties
The Respondent argues that it has no duty to bargain over this
proposal because, in fact, employees suffered no adverse effects in the
areas specified by the proposal as a consequence of the detail. The
General Counsel contends that this proposal is to the same effect as
proposal 1 in American Federation of State, County and Municipal
Employees, Locals 2477 and 2910 and Library of Congress, 17 FLRA 786
(1985).
B. Analysis and Conclusion
We view this proposal as seeking to prevent only the assignment of
lower graded work from adversely affecting time in grade, promotions,
and evaluations. There is no indication in the language of the proposal
or otherwise that the proposal is meant to shield poor performance of
lower graded work from appropriate remedial action. The Respondent's
argument on this proposal is the same as that asserted with respect to
Proposals 2, 3 and 6 -- that is the proposal is "meaningless" or
"unnecessary." As noted earlier, such arguments do not present a basis
for finding a proposal nonnegotiable. In the absence of any other claim
or apparent reason that this proposal is outside the duty to bargain, we
find it negotiable. /4/
Proposal 9
Management will follow Article 16, Section 2 of NORD II and
relieve those detailed of work currently assigned to them.
A. Positions of the Parties
The first sentence of Proposal 9 would require that the Respondent
follow Article 16, Section 2, of NORD II in implementing the details.
The Respondent contends that this proposal constituted an attempt to
renegotiate that provision and for that reason it is outside the duty to
bargain. The General Counsel contends that this proposal only seeks to
assure compliance with NORD II.
B. Analysis and Conclusion
It appears that the dispute between the parties as to the
negotiability of Proposal 9 is purely a matter of differing and arguable
interpretations of their collective bargaining agreement. As previously
discussed in section VI.B., the appropriate avenue to resolve the
dispute is the grievance and arbitration procedures in the parties'
agreement, not unfair labor practice procedures.
VII. Remedy
The details in dispute in this case were discontinued before the
charge was filed. In these circumstances, we agree with the Judge's
conclusion that a status quo ante remedy is not warranted. Where the
evidence shows that a status quo ante remedy would be meaningless, a
prospective bargaining order should fully remedy the refusal to bargain
violations. /5/ See U.S. Department of Labor, Occupational Safety and
Health Administration and National Council of Field Labor Locals,
American Federation of Government Employees, Local 644, AFL-CIO, 24 FLRA
No. 74 (1986).
Finally, we reject the Respondent's request that the remedial order
be limited to the Respondent's Collection Division facilities located in
metropolitan Denver. In agreement with the Judge, we find that a
prospective remedial order concerning the entire Denver District, the
level of bargaining involved, will best effectuate the purposes and
policies of the Statute. Accordingly, we will not limit the remedial
order to the Respondent's Collection Division facilities located in
metropolitan Denver.
VIII. 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 thus affirm those rulings. We have considered the Judge's Decision,
the positions of the parties and the entire record, and adopt the
Judge's findings, conclusions, and recommended Order as modified by this
decision.
Therefore, having found Proposals 2, 3, 6, and 8 negotiable, we
conclude that the Respondent violated section 7116(a)(1) and (5) of the
Statute by implementing the detail of Revenue Officers to the ACS while
failing and refusing to negotiate over such proposals with the Union.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we order the Internal Revenue Service,
Washington, D.C., Internal Revenue Service, Denver District, Denver,
Colorado to:
1. Cease and desist from:
(a) Failing and refusing to meet and negotiate with the
National Treasury Employees Union, Chapter 32, the agent of the
exclusive bargaining representative of their employees, National
Treasury Employees Union, over negotiable proposals with respect
to the procedures which it will observe in exercising its
authority with regard to the detail of bargaining unit employees
between offices within the Denver District and concerning
appropriate arrangements for employees adversely affected by the
change.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Notify the National Treasury Employees Union, Chapter 32,
the agent of the exclusive bargaining representative of their
employees, National Treasury Employees Union, of any intention to
detail employees between offices within the Denver District,
specifically including the detail of Revenue Officers and Tax
Specialists to the Automated Collection System and, upon request,
negotiate with such representative concerning the procedures to be
observed in implementing such detail and concerning appropriate
arrangements for employees adversely affected by such detail.
(b) Post at its facilities in the Denver District copies of the
attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such form they shall be
signed by the District Director and shall be posted and maintained
for a period of 60 consecutive days thereafter, in conspicuous
places, including bulletin boards and other places where notices
to employees are customarily posted. Reasonable steps shall be
taken to ensure 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 of Region VII, Federal
Labor Relations Authority, in writing, within 30 days of this
Order as to what steps have been taken to comply herewith.
The complaint is dismissed insofar as it relates to the Respondent's
refusal to negotiate over those proposals found to concern disputes over
the interpretation of the parties' collective bargaining agreement, and
as to those found to be nonnegotiable.
Issued, Washington, D.C., June 25, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ 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 and refuse to meet and negotiate with the National
Treasury Employees Union, Chapter 32, the agent of the exclusive
bargaining representative of our employees, National Treasury Employees
Union over negotiable proposals with respect to the procedures which we
will observe in exercising our authority with regard to the detail of
bargaining unit employees within the Denver District and concerning
appropriate arrangements for employees adversely affected by such
change.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL notify the National Treasury Employees Union, Chapter 32, the
agent of the exclusive bargaining representative of our employees,
National Treasury Employees Union, of any intention to detail employees
between offices within the Denver District, specifically including the
detail of Revenue Officers and Tax Specialists to the Automated
Communications System, and, upon request, negotiate with such
representative concerning the procedures to be observed in implementing
such detail and concerning appropriate arrangements for employees
adversely affected by such detail.
(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, Region VII, whose address is: 535 16th Street, Suite 310,
Denver, CO 80202 and whose telephone number is (303) 837-5224.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 7-CA-50641
INTERNAL REVENUE SERVICE, WASHINGTON, D.C. and
INTERNAL REVENUE SERVICE, DENVER DISTRICT,
DENVER, COLORADO
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION and NATIONAL
TREASURY EMPLOYEES UNION, CHAPTER 32
Charging Party
Joseph Swerdzewski, Esquire
Cathy A. Auble, Esquire
For the General Counsel
Sherry L. Travers, Esquire
William F. Burbach, Esquire
On Brief: David L. Jordan, Esquire
Gary A. Anderson, Esquire
For the Respondent
Ms. Eileen Newman
For the Charging Party
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq., /6/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1, et seq., concerns whether
Respondent, on, or about, August 4, 1985, detailed about 20 Revenue
Officers to its Automated Collection site without providing the Union an
opportunity to bargain concerning the impact and implementation of said
temporary detail, in violation of Sections 16(a)(5) and (1) of the
Statute. In essence, Respondent asserts there has been a long and
consistent practice of details of Revenue Officers in the Denver
District; that this detail represented no change in past practice,
policy or procedure; and that the 1985 detail was in accordance with
the parties' Agreement. Accordingly, because there was no change in
past practice and the detail was in accordance with the Agreement of the
parties; there was no obligation to bargain on the Union's proposals.
Respondent further asserts that because the Union, for ten years or
more, acquiesced in the detail of Revenue Officers, without requesting
negotiations on impact and implementation, the Union, by established
practice, had waived its right to negotiate on impact and implementation
of the 1985 detail. Finally, Respondent asserts that the impact of the
detail was no more than de minimus.
This case was initiated by a charge filed on September 30, 1985 (G.C.
Exh. 1(a)) and the Complaint and Notice of Hearing issued on December
19, 1985 (G.C. Exh. 1(b)) and set the hearing for January 21, 1986. By
Order dated January 10, 1986, the hearing was rescheduled for February
19, 1986, pursuant to which a hearing was duly held on February 19 and
20, 1986, in Denver, Colorado, before the undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to introduce evidence bearing on the issues
involved, and were afforded the opportunity to present oral argument.
At the close of the hearing, by agreement of the parties, March 27,
1986, was fixed as the date for mailing post-hearing briefs and
Respondent and General Counsel each timely mailed an excellent brief,
received on, or before, March 31, 1986, which have been carefully
considered. Upon the basis of the entire record, /7/ including my
observation of the witnesses and their demeanor, I make the following
findings and conclusions:
Findings
1. The National Treasury Employees Union and National Treasury
Employees Union, Chapter 32 (hereinafter referred to as the "Union") is
the exclusive representative of certain of Respondent's employees (G.C.
Exhs. 2 and 3). The bargaining unit includes the positions at issue,
specifically, Revenue Officers and Tax Examiners/Contact Representatives
(Tr. 12, 13). The current national Agreement, hereinafter referred to
as "NORD II", has been in effect since May, 1985 (G.C. Exh. 2), and the
current local supplemental agreement (G.C. Exh. 3), has been in effect
since April, 1978.
2. Revenue Officers are assigned to Respondent District's Collection
Division (Res. Exh. 4). The Collection Division consists of the
Automated Collection System (ACS) Branch, the Special Procedures Staff
(Branch), /8/ and two Field Branches. Each Field Branch consists of
five Field Groups, with 10 to 15 Revenue Officers assigned to each
Group, which results in a total of between 100 and 150 Revenue Officers
employed by the Collection Division. Seven of the ten Field Groups
(between 70 and 105 Revenue Officers) are located in the Denver
metropolitan area while the remaining three Groups are located in Fort
Collins, Grand Junction and Colorado Springs, Colorado. /9/
3. Revenue Officers generally are grade GS-9 and are supervised by
grade GS-12 employees (Tr. 80, 81, 109). Their duties, performed within
the State of Colorado, consist of about 50% field work and 50% office
work (Tr. 82, 266). Field work involves face-to-face contact with
taxpayers and includes such duties as: locating taxpayers, determining
corporate tax liability in 100% penalty assessment situations, issuing
summons, serving levies and seizing assets (Tr. 81-82). The office work
in the metropolitan area is performed at one of four locations,
depending upon the Field Group to which the Revenue Officer is assigned:
downtown office, north office, west office, and south office (Res. Exh.
4).
4. The office environment typical to each Revenue Officer includes:
a five-drawer locking desk; a credenza /10/ on or above the desk; a
telephone, shared by two Revenue Officers. There was no security system
at the Field Groups; hours of work were flexible, pursuant to the
Alternate Work Schedule Agreement (G.C. Exh. 18); a 45 minute lunch
break; no particular dress code; no restriction on food or drink at
desks and interaction between Revenue Officers and other employees was
not restricted (Tr. 84, 87, 88, 89). In their general office area,
Revenue Officers have access to two computers: the Integrated Data
Retrieval System (IDRS), which accesses current taxpayer information;
and a mini-computer, used to perform mathematical calculation related to
IDRS data (Tr. 82, 83, 98). There are a number of meal facilities
located outside the various offices which can be used within the 45
minute lunch break. (Tr. 88, 112).
5. The ACS Branch is, essentially, a paperless, computer operation
which is the initial part of the process of collecting taxes (Tr. 143).
ACS monitors and controls the collection scheduling of activities of
Taxpayer Delinquent Accounts (TDA's) and Tax Delinquent Investigations
(TDI's) (Tr. 129, 138, 139). ACS has been in existence only since May
14, 1984, having replaced the former Office Branch which performed the
same function (Tr. 143), the only difference being that the Office
Branch was located downtown, while ACS is located in Englewood,
Colorado, about 12 to 16 miles from downtown Denver (Tr. 144, 178, 263).
ACS services Colorado and eight other states in three time zones (Tr.
145). ACS normally has 120 to 140 employees. Contact
Representatives/Tax Examiners are employees in grades GS-4 or 5 to 7,
and are supervised by employees in grade GS-9 (Tr. 80, 81, 110).
Contact Representative/Tax Examiners' duties consist solely of
telephonic contact with taxpayers (Tr. 82).
6. The office environment typical to Contact Representatives/Tax
Examiners consist of a computer terminal and headset by which the
employees access taxpayer information, telephone the taxpayer via an
automatic dial system, by pressing a button, and talking with the
taxpayer (Tr. 90, 111). Employees have to sign on and off the computer,
and a record is kept of employee time on the computer (Tr. 91). The ACS
computer is completely different from either the IDRS or the
mini-computer used by Revenue Officers and requires different sign
in/sign off techniques and different command codes (Tr. 83). At ACS the
computer terminals set on desks with no drawers and no credenza;
however, small lockers are available for storage (Tr. 85). Messages are
taken for all incoming telephone calls and posted on a bulletin board by
the break room (Tr. 85, 86). Outgoing personal telephone calls must be
placed on a pay phone located near the break room (Tr. 85, 86).
The doors to ACS are normally locked except for periods of shift
change, but access can be gained by using a telephone located outside
the locked doors (Tr. 87). Although ACS is subject to a separate
agreement governing certain conditions of employment, such as an
alternate work schedule, Contact Representatives/Tax Examiners work an
8:00 a.m. to 4:30 p.m. shift with a 30 minute lunch break (Res. Exh. 8;
Tr. 113, 246). Although there is no written dress code, the policy is
that ACS employees should "dress professionally in regular business
attire" (Tr. 168). Food is not allowed at terminals and drinks are
permitted only if in a spill-proof container (Res. Exh. 8, Section 8,
pp. 5-6). Because work is performed exclusively at the terminal,
Contact Representatives/Tax Examiners are not allowed to interact with
fellow employees while on duty (Tr. 89, 90). There is only one break
room at ACS, which accommodates 30 people, and, accordingly, lunch
periods must be staggered (Tr. 260) and employees assigned to a
particular lunch shift which can not be changed without supervisory
approval (Tr. 259-260). There are vending machines in the break room;
a mobile lunch wagon; and a sandwich shop about a mile from the ACS
facility. (Tr. 113). Employees may bring their lunches and can store
them in the break room refrigerators (Tr. 113).
7. Due to severe and unforeseen budgetary conditions, some fifty
newly hired, temporary employees at ACS, about 1/3 of the staff, had to
be terminated in June, 1985 (Tr. 130, 131, 150, 151, 244). In order for
ACS to handle its workload, Collection Division Chief, Mr. Louis Bolle,
decided to detail Revenue Officers from the Denver metropolitan area to
ACS for a period of 60 days, August 4 through September 27, 1985 (Tr.
151). Mr. Bolle testified, in part, that Respondent did not want to
detail Revenue Officers from outside the metropolitan area because: the
need to pay travel and per diem and take them out of their regularly
assigned post of duty and away from their homes. There were also
sufficient numbers of revenue officers located within the metro area at
the lower grade levels where we could detail them with little or no cost
and still keep within the commuting area (Tr. 153). At a Collection
Division Staff meeting on July 12, 1985, the minutes /11/ show the
following discussion:
"6. Detail of Revenue Officers to ACS -- In order to assist
ACS in handling the workload for Denver and eight customer
districts, 18 Revenue Officers and two Tax Examiners from SPS will
be detailed to ACS Branch beginning August 5, 1985. The detail
will be for 60 days ending September 27, 1985. There will be
approximately one week of technical and one week of hands-on
training prior to assignment of Revenue Officers to contact work .
. . The hours for training will be developed by ACS and the EDS
plus we should try to conform as nearly as possible to
approximately an 8:00-4:30 shift for all detailees during this 60
day period. Any hardship or other unusual situations will be
handled on a case by case basis if alternate work schedules are
needed by the detailees . . . . " (Res. Exh. 7).
8. At the Labor-Management Relations Committee meeting on July 18,
1985, at which the Union was represented by Ms. Joan Kind, President of
Chapter 32 and four other representatives (Ms. Eileen Newman; Ms.
Barbara Platt; Mr. Bob Ritter; and Ms. Connie Schneider), Respondent
informed the Union of the "Possible Detail" of Revenue Officers to ACS.
Respondent advised the Union that the detail of " . . . 20 revenue
officers from the metro area to the ACS . . . " would be for a period of
60-days -- August 5 through September 27 . . . There will be a two-week
training period. Each branch in Collection will furnish 9 revenue
officers and the other 2 will be from SPS . . . Memo will be issued to
revenue officers giving them the rules at the Site and they will be
expected to follow the same rules as other employees at the Site." (G.C.
Exh. 4). The Union asked whether detailees would be paid mileage and
whether detailees would be considered for awards. Respondent stated
that mileage would be paid but that detailees would not be considered
for awards (G.C. Exh. 5). Ms. Kind testified that she said, " . . . we
probably would want to negotiate this and I would let them know at a
later date if we wished to negotiate this change." (Tr. 17).
9. On July 19, 1985, the employees selected for the detail (Res.
Exh. 9) were notified and each was sent a memorandum from the Chief of
ACS, Ms. Patricia E. Callahan (Res. Exh. 16), which gave directions to
reach the ACS Branch; advised detailees concerning parking, prohibition
on food or smoking in the work area; stated that the ACS has a 30
minute lunch break and two 15 minute breaks during the day; that,
because of the limited time available to go off site for lunch, bag
lunches were encouraged; that there were two refrigerators and two
microwave ovens for use by employees; that the breakroom has vending
machines and there is a food wagon; and finally that "During training
you will be working an 8:00 a.m. to 4:30 p.m. shift. It will depend on
call site workload needs and the status of the AWS Bill whether other
tours will be available after training." (Res. Exh. 16).
9. On July 26, 1985, Union President Kind submitted the following
impact and implementation proposals:
"1. Revenue Officers will be allowed to remain on the same
tour of duty that they are currently on.
"2. No dress code, stated or implied, will be imposed on the
Revenue Officers.
"3. Mileage will be paid consistent with the regulations.
"4. Any detailee living fifty (50) miles or more from the ACS
will be put on per diem.
"5. Detailees will be given a 45 minute lunch break.
"6. Adequate training will be provided.
"7. The work will be equally divided between those detailed.
"8. The parties agree that those detailed will not be
adversely affected because the work is lower graded work. This
applies to time in grade, promotions, and evaluations.
"9. Management will follow Article 16, Section 2 of NORD II
and relieve those detailed of work currently assigned to them.
Administrative time will be granted to prepare the list referred
to in this section.
"10. Revenue Officers not assigned to the ACS will not be
expected to work double inventories." (G.C. Exh. 6)
10. By letter dated August 2, 1985, Respondent replied to the
Union's request to negotiate as follows:
"This is in reply to your letter of July 26, 1985, requesting
negotiations on the detail of Revenue Officers to ACS.
"In our review of details of Revenue Officers in the Denver
District, we can find no change in our past practice, policy and
procedures. Management's decision to detail Revenue Officers to
ACS is in accordance with Article 16, of the NORD II Agreement.
Since we are not changing our past practice, policy, and
procedures and are conducting those details with accordance to
Article 16, of the NORD II Agreement, we find that we have no
obligation to bargain on the proposals you have submitted.
"If you wish to discuss this matter further, please contact Mr.
L. R. Bolle, Chief, Collection Division." (G.C. Exh. 7).
11. On August 4, 1985, eighteen Revenue Officers and two Special
Procedures Staff Tax Examiners began a sixty day detail at ACS. Upon
arrival at ACS, detailees underwent training; however, the two weeks
training planned proved to be unnecessary, because of their expertise,
and the training was, accordingly, shortened (Tr. 246). At the
conclusion of training, detailees assumed the duties and
responsibilities of Contact Section employees and performed in that
capacity until termination of the detail on September 27, 1985 (Tr. 246,
247). Three days after completion of the detail, on September 30, 1985,
the Union filed the unfair labor practice charge.
12. NORD II, Article 16, as applicable, provides as follows:
"ARTICLE 16
"DETAILS
"Section 1
"A. For the purposes of this article, a detail is defined as
the temporary assignment of an employee to a different position
for a specified period, with the employee returning to regular
duties at the end of the detail.
"B. (detail to position of higher grade)
"C. Details of more than thirty (30) consecutive calendar days
will be formally documented by the placement of an SF-50 in the
employee's official personnel folder.
"D. (rotation through higher graded position which avoids
compensation at the higher grade)
"Section 2
"Enforcement officedrs who are on formally documented details
will be relieved of responsibility by the Employer for work then
assigned, provided such work is not encompassed by the detail.
The foregoing relief of responsibility will be based on the
detailee's written list of those cases, identifying the actions
therein which need attention. The Employer agrees that
notification of the detail shall be timely and the detailee shall
be provided with sufficient time to prepare such a list. The
relief of responsibility shall terminate with the employee being
returned to the permanent position.
"Section 3
"(overseas assignment)" (G.C. Exh. 2)
13. The Alternate Work Schedule Agreement provides, in part, as
follows:
"ARTICLE 4 -- EXCEPTIONS AND LIMITATIONS TO AWS
. . .
"H. Employees in a classroom training session in the Denver
District will have a work schedule as determined by the employer.
I. Employees in a travel or training status or on a detail
outside the Denver District will adhere to the work schedule and
tour of duty to which they are temporarily assigned.
. . .
ARTICLE 5 -- AUTOMATED COLLECTION SYSTEM (ACS)
This agreement does not cover employees who will subsequently
be working in the ACS. This will be negotiated separately at the
time ACS becomes operational." (G.C. Exh. 18) (Emphasis supplied).
The ACS Agreement provides, in part, as follows:
"Section 1 -- Applicability of Existing Agreements
Unless specifically provided otherwise herein, the provisions
of the NORD, Performance Appraisal, and the National ACS Agreement
shall govern . . . .
. . .
"Section 5 -- Telephone Access
ACS employees will have access to unmonitored government
telephones for incoming and outgoing administrative, emergency and
Union-related calls. These phones will be designated by
management around the ACS call site . . . . "
"Section 6 -- Official Time and Hour (sic) of Duty
. . .
"(c) Day shift units are those with work schedules Monday
through Friday or Tuesday through Saturday ending on or before
6:00 p.m. . . . .
. . .
"(e) Both shifts will be covered by the Denver District
Memorandum Agreement or AWS (G.C. Exh. 18 supra) with the
following exceptions:
. . .
"ARTICLE 4 . . . (I) . . .
. . .
"(i) Employees in a travel or training status or on a detail
outside the ACS site will adhere to the work schedule or tour of
duty to which they are temporarily assigned.
. . .
"Section 8 -- Work and Break Areas
"(a) Food is not allowed in the work or training areas and no
food or drink is allowed in the computer room.
"(b) Liquids may be consumed in the ACS work or training area
provided that they are:
1) in a spill proof container approved by the employer . . . .
. . .
(Res. Exh. 8) (Emphasis supplied).
14. Mr. Louis Bolle, former Collection Division Chief, testified
that from mid-1970 to September, 1985, the policy and practice had been
to correct staffing imbalances by detailing Revenue Officers between
offices within the District (Tr. 145-147, 148, 161, 177, 183, 184,
195-196). Mr. Bolle's testimony was corroborated by other agency
witnesses and documentary evidence (Tr. 201-202, 223-224, 230-232, 242,
276-277, 293-294; Res. Exhs. 1, 2, 3, 6, 7, 13, 14, 21, 22, 23), and
was corroborated on cross-examination by former Union Presidents
Frederick Lockhart and Joan Kind (Tr. 54-55, 75, 76, 77). Respondent
asserts that it consistently gave the Union advance notice of such
details and routinely assured the Union that such details would be
implemented in accordance with all applicable contractual and statutory
provisions (Tr. 15-16, 17, 22, 23, 48, 50, 54, 55, 64, 68, 69, 72, 73,
74, 75, 76, 77, 147, 149, 159, 177, 181, 184; Res. Exhs. 1, 6);
however, Ms. Kind testified that proper notice of the December, 1983,
detail of Revenue Officers to ACS was never given to her, as President,
or to any alternate Union officer designated to receive notice (Tr. 307,
309-310); and that there is no evidence that the Union was notified of
the February, 1984, detail of employees from throughout the country,
including 13 from the Denver District of whom 5 were bargaining unit
employees, to ACS (Tr. 225-226). Nevertheless, it is clear that
Respondent gave the Union notice of most, if not all, details of Revenue
Officers and that no bargaining on impact and implementation of the
detail of Revenue Officers to Office Branch or its successor, ACS, ever
took place because the Union failed to request negotiations (Res. Exhs.
2, 3); because of the Union's policy to evaluate each change in
conditions of employment on a case-by-case basis to determine "whether
or not we ought to demand negotiations" (Tr. 61); or because Respondent
refused to negotiate, as it did on August 2, 1985.
Conclusions
A. Union's prior decisions not to exercise right to
negotiate impact and implementation does not constitute
either "condition of employment" or waiver of right to
negotiate upon a further change of conditions of
employment by Employer.
Respondent is quite correct that, in Department of Health, Education
and Welfare, Region V, Chicago, Illinois, 4 FLRA No. 98, 4 FLRA 736, 746
(1980), I held that practices or procedures followed by individual
employees do not, without more, become conditions of employment; that
to constitute a condition of employment such practice must: (a) be
known to management; (b) responsible management must knowingly
acquiesce; and (c) such practice must continue for some significant
period of time. The Authority has applied this standard in other cases,
see, for example: Department of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, 5 FLRA No. 48, 5 FLRA 352 (1981); Social
Security Administration, Mid-America Service Center, Kansas City,
Missouri, 9 FLRA No. 33, 9 FLRA 229 (1982). From this, Respondent
asserts: "Fairness and parity require that the same standard be applied
in judging a union's conduct where the union has knowingly acquiesced in
a past practice over a significant period of time." (Respondent's Brief,
p. 9). While an ingenious argument, I find it wholly lacking in merit
and based on a faulty premise. The concept that practices can become
conditions of employment is by no means new. It was given statutory
recognition in the Railway Labor Act in 1926, see, for example, Section
6, 45 U.S.C. Section 156; and was followed under the Executive Order,
see, for example, Los Angeles Air Route Traffic Control Center, Federal
Aviation Administration, A/SLMR No. 283, 3 A/SLMR 325 (1973); Internal
Revenue Service, Office of the Regional Commissioner, Western Region,
A/SLMR No. 473, 5 A/SLMR 39 (1975); Veterans Administration, Veterans
Administration Regional Office, New York Region, A/SLMR No. 694, 6
A/SLMR 436 (1976); U.S. Department of the Treasury, Internal Revenue
Service, New Orleans District, New Orleans, Louisiana, A/SLMR No. 1034,
8 A/SLMR 497 (1978); Internal Revenue Service, Southeastern Region
Appellate Branch Office, New Orleans, Louisiana, A/SLMR No. 1153, 8
A/SLMR 1254 (1978); and has been followed under the Statute by the
Authority. But, while practices may become conditions of employment,
which may not be unilaterally changed by management, no limitation on
the exercise of a statutory right has ever been imposed, nor may the
exercise of a statutory right be limited, merely because the statutory
right had not been exercised on prior occasions. Thus, in the HEW,
Region V case, supra, the activity had the right to insist upon
compliance with the negotiated agreement with regard to release of union
officers to perform union activity during working time; but, the
activity permitted the union president to depart from the negotiated
procedure; nevertheless the activity was entitled to terminate the
deviant practice by proper notice to the union president.
The fact that the union, here, did not request impact and
implementation bargaining on prior details of Revenue Officers did not
alter its statutory right to request such bargaining when a further
detail was announced on July 18, 1985. Indeed, prior to May, 1984,
detail of Revenue Officers to perform the same function as at ACS had
been to the Office Branch which was located in downtown Denver, and, in
part because of the central location of the Office Branch such details
of Revenue Officers from the metropolitan area may have resulted in far
less impact on employees; but with the establishment of ACS in
Englewood the respective distances from the metropolitan area offices to
ACS became: downtown -- 12-16 miles; north -- 30-35 miles; west --
30-35 miles; and south -- 3 miles (Tr. 178, 263). Not only did the
commuting distances change with the establishment of ACS but so, too,
did the office environment which, as Mr. Bolle conceded, is a "bit more
structured". (Tr. 142).
Nothing in the record establishes, or even suggests, that the Union
ever waived its right to negotiate on the impact and implementation of
the detail of Revenue Officers. The Authority has made it unmistakably
clear that, " . . . the duty to negotiate in good faith under the
Statute requires that a party meet its obligation to negotiate prior to
making changes in established conditions of employment . . . absent . .
. a clear and unmistakable waiver of bargaining rights." Department of
the Air Force, Scott Air Force Base, Illinois, 5 FLRA No. 2, 5 FLRA 9
(1981); see, also, NASA, Kennedy Space Center, Florida, A/SLMR No. 223,
2 A/SLMR 566, 569 (1972); Department of the Air Force, U.S. Air Force
Academy, 6 FLRA No. 100, 6 FLRA 548 (1981). Certainly, nothing in Mr.
Lockhart's letters of November 14, 1979 (G.C. Exh. 16) and October 7,
1981 (G.C. Exh. 17) either suggests or implies a waiver of the Union's
right to negotiate concerning impact and implementation. It is quite
true that in his letter of November 14, 1979, Mr. Lockhart stated:
" . . . I am requesting that in the future all proposed changes
in employment conditions . . . be communicatged in writing to the
President of NTEU Chapter 32 as far in advance of finalization and
implementation as is reasonably possible." (G.C. Exh. 16).
and that in his letter of October 7, 1981, Mr. Lockhart stated, in
part as follows:
"Recently, the District has made three significant changes in
employment conditions . . . without providing the President of
NTEU Chapter 32 adequate advance notice . . .
. . .
"3. On October 2, 1981, the Collection Division chief notified
me of a proposed change in employment conditions with reference to
detailing of Revenue Officers to Office Collections. That same
day the proposed change was presented to Field Collection groups
as a fait accompli.
"I want you to know that I consider the implementation of each
one of the changes an unfair labor practice because of the
inadequate notice given to the NTEU Chapter President.
"The next significant District change in employment conditions
which is implemented without adequate advance notice . . . will
result in my recommending the filing of unfair labor practice
charges. The recommendation will probably also include the three
above mentioned instances . . . The point being that I am not
waiving the Chapter's rights to file charges on these three
instances . . . . " (G.C. Exh. 17).
Notice of proposed changes in conditions of employment, while a
necessary pre-condition to a union's ability to exercise its right to
negotiate, is quite separate and distinct from what the union does upon
receipt of such notice. /12/ Although Mr. Lockhart obviously was
concerned about adequate advance notice, both in his letter of November
14, 1979, and in his letter of October 7, 1981, there is no suggestion
whatever, much less " . . . a clear and unmistakable waiver", that the
Union would not fully exercise its right to negotiate concerning changes
in conditions of employment.
Respondent's assertion that, " . . . it appears that NTEU was content
in the knowledge that it was notified before detail-related decisions
were made and that its input was considered" (Respondent's Brief, p.
12), is not supported by the record. To the contrary, Mr. Lockhart very
credibly testified that, " . . . what we really wanted from management
was adequate advance notice and opportunity to discuss the proposed
changes with the affected employees and a reasonable amount of time to
come to some sort of conclusion on whether or not we ought to demand
negotiations." (Tr. 61). The fact that Mr. Lockhart did not request
negotiations on details (until November, 1983, when he last held office
in the Union) (Tr. 72, 73) does not constitute a waiver of the Union's
right to negotiate. Ms. Kind, when informed on July 18, 1985, of the
"Possible Detail" of Revenue Officers to ACS informed Respondent that
the Union "probably would want to negotiate this and I would let them
know at a later date if we wished to negotiate this change" (Tr. 71),
and on July 26, 1985, Union President Kind submitted impact and
implementation proposals.
Respondent's reliance on Department of the Treasury, Internal Revenue
Service, and Its Cleveland Ohio District Office, 20 FLRA No. 43, 20 FLRA
403 (1985), is misplaced. Indeed, rather than supporting Respondent's
assertion of waiver, it is to the contrary. There, the Authority first
noted that,
" . . . 'where an agency in exercising a management right under
section 7106 of the Statute, changes conditions of employmnent of
unit employees . . . the statutory duty to negotiate comes into
play if the change results in an impact upon unit employees or
such impact was reasonably foreseeable.' (footnote omitted) U.S.
Government Printing Office, 13 FLRA 203, 204-05 (1983). The
Authority thereafter held in Department of Health and Human
Services, Social Security Administration, Chicago Region, 15 FLRA
No. 174 (1984), that 'no duty to bargain arises from the exercise
of a management right that results in an impact or a reasonably
foreseeable impact on bargaining unit employees which is no more
than de minimums.'" (20 FLRA at 404).
In addressing the case before it, the Authority stated, in part, as
follows:
" . . . The adverse effects . . . are effects associated with
employees having to give up their individual desks and file
cabinets and work in a more cramped work space. These effects
arose primarily from the Respondent's decision, in 1981, to go to
a MOWS concept. Thus, the nature and degree of the impact of the
change in 1983 did not differ from the impact that was foreseeable
when Respondent developed its plan in 1981. In order for there to
be a 1983 bargaining obligation, the nature of management's action
in 1983 must have resulted in new impact or reasonably foreseeable
impact, which is more than de minimus, beyond that which was
already foreseeable as a result of the Respondent's announced 1981
decision as to which the Union had waived its right to negotiate .
. . . " 20 FLRA at 406).
Thus, there was a 1981 proposal, to consolidate space and to utilize
a Multiple Occupancy Work Station (MOWS), which was not implemented
until 1983. As to the 1981 proposal, the Union had waived its right to
negotiate; nevertheless, when the plan was implemented in 1983, the
Authority specifically recognized a further duty to negotiate if there
were "new impact or reasonably foreseeable impact which is more than de
minimus, beyond that which was already foreseeable as a result of the .
. . announced 1981 decision as to which the Union had waived its right
to negotiate." In other words where there is a decision to change
conditions of employment and the Union waives its right to negotiate
impact and implementation, there is still an obligation to negotiate
concerning that decision if the employer changes that decision, as to
which the Union has already waived its right to negotiate, provided
there is some new impact, as the result of the change, which was beyond
the impact foreseeable as the result of the original decision and that
new impact is more than de minimus. A fortiori, there is a duty to
negotiate concerning a change of conditions of employment as to which
there has been no waiver of the right to negotiate. Most assuredly, the
Union did not waive its right to negotiate the impact and implementation
of the change of conditions of employment resulting from the detail of
Revenue Officers to ACS when notified of the "Possible Detail" on July
18, 1985; but to the contrary, informed Respondent on July 18, 1985,
that it "probably would want to negotiate" and submitted its proposals
on July 26, 1985.
B. Negotiations are neither precluded nor waived by
provisions of prior agreements
There is no question that NORD II contemplates details, indeed
provides, inter alia, that details of more than thirty consecutive
calendar days must be formally documented by the placement of an SF-50
in the employee's personnel folder and further that "Enforcement
Officers" on formally documented details will be relieved of
responsibility for work then assigned, provided the detailee prepares a
written list of cases identifying cases which need attention. NORD II
also addresses details to positions of higher grade, rotation through
higher graded positions, and overseas assignment; but NORD II does not
purport to cover all aspects of details, nor is there anything contained
in NORD II which either directly or by implication indicates any waiver
of the right of the Union to negotiate concerning changes in conditions
of employment. To the contrary, Article 47 specifically provides for
notice of changes in conditions of employment and for mid-contract
negotiations. Likewise, while both the Alternate Work Schedule
Agreement and the ACS Agreement refer to details and, by inference,
contemplate details, there is nothing in either agreement that
constitutes a waiver by the Union of its right to negotiate concerning
change of conditions of employment resulting from Respondent's exercise
of its right to detail employees. Accordingly, I conclude that
negotiations are neither precluded nor waived by the provisions of any
prior agreement. Nor does Respondent assert to the contrary.
C. Did the August, 1985, detail of eighteen Revenue
Officers and Two Special Procedures Staff Tax Examiners
to ACS for 60 days result in an impact or a reasonably
foreseeable impact which was more than de minimus?
The decision to detail employees is a management right within Section
6(a)(2) of the Statute, American Federation of Government Employees,
AFL-CIO, Local 32, 14 FLRA No. 2, 14 FLRA 6 (1984); but when an agency,
in exercising a management right under Section 6, changes conditions of
employment of unit employees, a statutory duty to negotiate, as to
impact and implementation, or more accurately, pursuant to Section
6(b)(2) and (3) of the Statute, procedures which management will observe
in exercising such authority or appropriate arrangements for employees
adversely affected by the exercise of such authority, if the change
results in an impact or a reasonably foreseeable impact on bargaining
unit employees which is more than de minimus. Department of Health and
Human Services, Social Security Administration, Chicago Region, 15 FLRA
No. 174, 15 FLRA 922 (1984). In determining whether the impact or
reasonably foreseeable impact of the exercise of a management right on
unit employees is more than de minimus, the Authority has held that the
totality of the facts and circumstances presented in each case must be
examined, including such factors as: " . . . the extent of the change
in work duties, location, office space, hours, loss of benefits or wages
and the like; the temporary, recurring or permanent nature of the
change (i.e., duration and frequency of the change affecting unit
employees); the number of employees affected or foreseeably affected by
the change; the size of the bargaining unit; and the extent to which
the parties may have established, through negotiations or past practice,
procedures and appropriate arrangements concerning analogous changes in
the past." Social Security Administration (Baltimore, Maryland) and
Office of Hearings and Appeals, Region II (New York, New York) and
Office of Hearings and Appeals (Syracuse and Buffalo, New York), 21 FLRA
No. 72, 21 FLRA 546, 548 (1986); Department of the Air Force, Scott Air
Force Base, Illinois, 20 FLRA No. 107, 20 FLRA 857, 859 (1985);
Department of Health and Human Services, Social Security Administration,
Region V, Chicago, Illinois, 19 FLRA No. 101, 19 FLRA 827, 830, 834-835
(1985).
In applying the above factors to this case, I find and conclude,
based upon the totality of the facts and circumstances presented, that
the detail did have an impact or a reasonably foreseeable impact on the
conditions of employment of unit employees and that such impact was more
than de minimus. In reaching this conclusion, I note that: (a) the
specific detail in question was of sixty days and involved 18 Revenue
Officers and 2 Tax Examiners, all from posts of duty within the Denver
metropolitan area. The Revenue Officers came from all four offices
within the Denver metropolitan area: downtown, north, west and south;
and the two Tax Examiners from downtown. ACS is located in Englewood
which is 12-16 miles from the downtown posts of duty; 30-35 miles from
north post of duty; 30-35 miles from the west post of duty; and 3
miles from the south post of duty. ACS Branch supervisor Harmon
testified that the detail changed the employees' daily one way commute
from home to post of duty from 3 miles to 35 miles. Not only was
commuting distance drastically altered for the detailees, but the
detailees were subjected to substantial change in work environment. The
change in the detailees' work location, alone, resulted in changes of
working conditions which were greater than de minimus. Department of
Transportation, Federal Aviation Administration, Washington, D.C., 20
FLRA No. 52, 20 FLRA 474 (1985).
The detailees suffered a marked change in their hours of work as a
result of the detail. All of Respondent's employees are subject to the
AWS Agreement, negotiated under the Federal Employees Flexible and
Compressed Work Schedules Act. /13/ All, or most, of the employees
detailed to ACS had been on flexible hours; but while on detail to ACS,
after completion of training, were placed on the 8:00 a.m. to 4:30 p.m.
shift with no exceptions. As the ACS and AWS Agreements permitted
flexible work schedules, after completion of training, retention of
flexible work schedule by detailees was negotiable. American Federation
of Government Employees, AFL-CIO, Local 32, 14 FLRA No. 2, 14 FLRA 6
(1984).
Detail of employees for 60 calendar days (roughly 40 working days)
clearly presented a question of whether the detailees would, or should,
be appraised while on detail, and conversely possible adverse effect on
appraisal in their regular jobs, in particular the Revenue Officers, for
lower annual production because of absence on detail. Because the work
at ACS was lower graded work, there was also foreseeable concern as to
whether detailees would be adversely affected as to time-in-grade and
promotion as Revenue Officers or as Tax Examiners. Department of the
Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base,
Ohio, 22 FLRA No. 4, 22 FLRA 15, 23-25 (1986).
The Union was concerned as to the payment of mileage. Although
Respondent orally stated that mileage would be paid, the Union was
entitled to negotiate a written agreement concerning, inter alia, the
payment of mileage for, as General Counsel notes, the governing IRM,
Section 252(4)(c), provides for a limitation on the payment of mileage
beginning with the sixth workday which limitation, pursuant to IRM
Section 252(4)(d), may be waived (General Counsel's Brief, p. 39, n.
17). Because of the discretion lodged in the "approving official",
payment of mileage for the period of the detail was not required by the
regulation and negotiation of a written agreement respecting payment of
mileage was clearly more than de minimus. Moreover, the Statute,
Section 14(b)(5), expressly requires the "if agreement is reached, to
execute on the request of any party . . . a written document embodying
the agreed term." Accordingly, Respondent's oral statement that it would
pay mileage is not an adequate substitute for the required written
document embodying the agreed terms.
Revenue Officers had a 45 minute lunch break; but at ACS the lunch
break was 30 minutes. The break room at ACS was small and, accordingly,
employees at ACS had to take staggered lunch breaks at assigned times.
Moreover, food facilities at ACS are limited and the nearest sandwich
shop off premises is about a mile from the ACS facility. Detailees were
adversely affected by the change of their normal 45 minute lunch break.
Although the ACS Agreement provides that "ACS employees will have
access to unmonitored government telephones for incoming and outgoing
administrative, emergency and Union related calls" (Res. Exh. 8, Section
5), no such "government telephones" were initially available to the
detailees for calls relating to their Revenue Officer duties. As
telephones had been provided at their normal work sites, the
unavailability of government telephones and their required use of pay
telephones resulted in an adverse impact.
Without detailing other aspects in which the change in work duties,
office space, etc. resulted in adverse impact on the detailees, I find
that under the first factor considered by the Authority, the impact or
reasonably foreseeable impact on bargaining unit employees was more than
de minimus.
(b) the particular detail was for only 60 days and affected only 18
Revenue Officers and 2 Tax Examiners; but the record is clear, as Mr.
Bolle testified, the policy and practice has been to correct staffing
imbalances in the Collection Division by detailing Revenue Officers
between offices within the District. Such details had occurred in the
past and can reasonably be anticipated in the future. Because of the
recurrent nature of details, the impact of details to ACS, previously to
Office Branch, extends beyond the 18 Revenue Officers and 2 Tax
Examiners involved in this particular detail to all Revenue Officers and
Tax Examiners in the Denver District, which further demonstrates that
the impact was more than de minimus.
(d) Although the bargaining unit is a nationwide consolidated unit of
which the Denver District is only a small part and the 20 employees
immediately affected by the August 4, 1985 detail represented a tiny
part, this fact is immaterial where, as here, pursuant to other (actors,
e.g., factor one, discussed in (a) above, there is a change of
conditions of employment which is more than de minimus. Stated
otherwise, impact is more than de minimus when it satisfies the
requirements of one or more of the factors considered by the Authority,
not that it must satisfy the requirements of all factors considered by
the Authority.
(e) The NORD II Agreement specifically provides for mid-term
bargaining when the Employer proposes to make a change in the conditions
of employment that is limited to " . . . one appointing office, (e.g.,
district, region, headquarters) . . . " (G.C. Exh. 2, Art. 47).
Although no supplemental local agreement had been negotiated under NORD
II and no local agreement had been negotiated with respect to details to
ACS, or its predecessor Office Branch, the Supplemental Agreement
negotiated under the Multi-District Agreement in 1978 (G.C. Exh. 3), in
Article 3 covered detail of employees in Taxpayer Assistance; and the
Memorandum of Understanding negotiated under the NORD Agreement (G.C.
Exh. 12) specifically addressed the detail of employees into the
Taxpayer Service Division.
Accordingly, the impact or reasonably foreseeable impact on
bargaining unit employees of the August 4, 1985 detail to ACS was more
than de minimus.
D. Union's proposals
By letter dated July 26, 1985, President Kind submitted proposals
with respect to the detail of Revenue Officers to ACS and requested that
the detail not be implemented until negotiations were completed (G.C.
Exh. 6). By letter dated August 2, 1985, Respondent refused to
negotiate, stating, " . . . we find that we have no obligation to
bargain . . . . " (G.C. Exh. 7).
The Authority has made it clear that,
" . . . where an agency exercises a management right but . . .
has rejected a timely request for negotiations pursuant to section
7106(b)(2) and (3) of the Statute, the agency will be found to
have violated section 7116(a)(1) and (5) of the Statute." U.S.
Government Printing Office, 13 FLRA No. 39, 13 FLRA 203, 205
(1983).
See, to like effect, Department of Health and Human Services, Social
Security Administration, Chicago Region, 15 FLRA No. 174, 15 FLRA
923-924 (1984); Department of Transportation, Federal Aviation
Administration, Washington, D.C., 20 FLRA No. 52, 20 FLRA 474, 477
(1985).
Inasmuch as I have found that the impact or reasonably foreseeable
impact on bargaining unit employees was more than de minimus and
Respondent foreclosed bargaining on the Union's proposals by asserting
that " . . . we have no obligation to bargain on the proposals you have
submitted", I find it unnecessary to consider the Union's proposals.
/14/
Having found that the detail of August 4, 1985, changed conditions of
employment of bargaining unit employees; that the impact or reasonably
foreseeable impact on bargaining unit employees was more than de
minimus; and that Respondent violated Sections 16(a)(1) and (5) of the
Statute by rejecting the Union's timely request for negotiations
pursuant to Section 6(b)(2) and (3) of the Statute, I recommend that the
Authority adopt the following:
ORDER /15/
Pursuant to Section 18(a)(7) of the Statute, 5 U.S.C. Section
7118(a)(7), and Section 2423.29 of the Regulations, 5 C.F.R. Section
2423.29, the Authority hereby orders that the Internal Revenue Service,
Denver District, Denver, Colorado, shall:
1. Cease and desist from:
(a) Refusing to negotiate, pursuant to Section 6(b)(2) and (3)
of the Statute, timely requests of the National Treasury Employees
Union, Chapter 32, when it exercises a management right and
changes conditions of employment of bargaining unit employees by
the detail of bargaining unit employees between offices within the
Denver District if such change results in an impact or a
reasonably foreseeable impact on bargaining unit employees which
is more than de minimus.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Notify the National Treasury Employees Union, Chapter 32,
the agent of the exclusive bargaining representative of their
employees, National Treasury Employees Union, of any intention to
detail employees between offices within the Denver District,
specifically including the detail of Revenue Officers to ACS, and,
upon request, negotiate with such representative concerning the
procedures to be observed in implementing such detail and
concerning appropriate arrangements for employees adversely
affected by such detail if such change in conditions of employment
results in an impact or a reasonably foreseeable impact on
bargaining unit employees which is more than de minimus.
(b) Post at its facilities in the Denver District copies of the
attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such form they shall be
signed by the District Director, or his designee, and shall be
posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including bulletin boards and other places
where notices to employees are customarily posted. Reasonable
steps shall be taken to ensure that such Notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director of Region VII, Federal Labor
Relations Authority, Suite 310, 535 -- 16th Street, Denver, CO
80202, in writing, within 30 days of this Order as to what steps
have been taken to comply herewith.
/s/ WILLIAM B. DEVANEY
Administrative Law Judge
Dated: July 16, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) In its Post-Hearing Brief, the General Counsel withdrew his
contentions that proposals 4, 9 (second sentence) and 10 were
negotiable. Thus, the issue of whether those proposals are within the
duty to bargain is no longer before us and we do not consider it in this
decision.
(2) This question is distinguishable from the issue of whether the
Union has waived its statutory right to negotiate over a particular
matter. See Department of the Air Force, Scott Air Force Base,
Illinois, 5 FLRA 9 (1981).
(3) See American Federation of Government Employees, AFL-CIO National
Council of EEOC Locals and Equal Employment Opportunity Commission, 10
FLRA 3 (1982), aff'd sub nom. Equal Employment Opportunity Commission,
744 F.2d 842 (D.C. Cir. 1984), cert. dismissed per curiam, 106 S.Ct.
1678 (1986), in which the Authority found negotiable a proposal which
merely required an agency to act in accordance with regulations.
(4) We make no findings as to the General Counsel's contention that
this proposal is similar to Proposal 1 in Library of Congress, 17 FLRA
786 (1985).
(5) In view of this conclusion, it is unnecessary to apply an
analysis of the factors enumerated in Federal Correctional Institution,
8 FLRA 604 (1982).
(6) For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
statutory reference, e.g. Section 7116(a)(5) will be referred to,
simply, as "Section 16(a)(5)."
(7) General Counsel submitted with her Brief a Motion to Correct
Transcript; on April 9, 1986, Respondent submitted a Motion to Correct
Transcript, received on April 16, 1986, from which had been deleted
corrections noted in General Counsel's Motion; on April 14, 1986,
General Counsel submitted a Response to Respondent's Motion to Correct
the Transcript, which Response related solely to Respondent's request to
"Sanitize taxpayer's name" at p. 115, lines 3-4. I fully agree with
General Counsel that the words, whether, or not, they constitute a
taxpayer name, were a transcription error and that the question,
actually, was "cabinetry business" and the transcript is corrected
accordingly. Since neither motion was otherwise opposed, the respective
motions are granted except as noted. General Counsel's motion with
respect to: page 10, l. 20 is denied; page 27, l. 19; and page 27, l.
20 is denied, as the transcript appears correct. Respondent's motion
with respect to page 167, l. 12 is denied as the transcript appears
correct. Except as noted, the respective motions are granted and the
transcript is hereby corrected as more fully set forth in the Appendix.
(8) Not at issue in this case except to the extent that two Tax
Examiners from SPS (Res. Exh. 9) were included in the detail to ACS (Tr.
228). SPS is located in downtown Denver (Tr. 227).
(9) No Revenue Officers were detailed to ACS in 1985 from outside the
Denver metropolitan area, i.e., none was detailed to ACS from Fort
Collins, Grand Junction or Colorado Springs (Tr. 154).
(10) Variously described as "on top" the desk (Tr. 84); or "above it
(the desk)". (Tr. 110). In any event, the credenza was not what one
would normally visualize as being a separate piece of furniture resting
on the floor, consisting of a long flat surface with "kneehole space in
the center, a shelf above the "kneehole" space and a drawer and cabinet
with doors to the right and left.
(11) Mr. Bolle testified that the "minutes" were actually a short
synopsis of what was discussed, dictated by him to his secretary and
subsequently typed. From the reference to a meeting on July 18, 1985,
it is obvious that the minutes of the July 12 staff meeting were not
finalized until after July 18, 1986.
(12) In point of fact, the Acting Regional Director refused to issue
a complaint on the October, 1981, detail, referred to in Mr. Lockhart's
letter of October 7, 1981, because notice was given to the Union on
October 2, 1981; the details were not implemented until October 13,
1981; but at no time before, or after, implementation of the details
did the Union request to bargain (Res. Exh. 2). The appeal from the
Acting Regional Director's refusal to issue a complaint was dismissed
because, " . . . the Charging Party did receive adequate notice of the
impending detail of revenue officers but failed to request negotiations
over the impact and implementation of those details." (Res. Exh. 3).
(13) Initially enacted on an experimental basis in 1979; reenacted
in 1982 for a three year period which would have expired in October,
1985, but extended by Congress; and made permanent by Congress on
December 23, 1985. 5 U.S.C. Section 6101, et seq.
The AWS Agreement (G.C. Exh. 18) initially excluded ACS; however,
the ACS Agreement (Res. Exh. 8) specifically made the AWS Agreement
applicable to ACS. The AWS Agreement provides that, "Employees in a
classroom training session in the Denver District will have a work
schedule as determined by the employer" (G.C. Exh. 18, Art. 4H). The
notice given detailees, pursuant to the AWS Agreement, stated, "During
training you will be working on 8:00 a.m. to 4:30 p.m. shift. It will
depend on call site workload needs and the status of the AWS Bill
whether other tours will be available after training." (Res. Exh. 16).
(14) The Union's proposals were timely and were pursuant to Section
6(b)(2) and (3); and while I expressly decline to consider the Union's
individual proposals, as it is unnecessary to do so where the Respondent
foreclosed any and all bargaining thereon, I do specifically find, for
reasons set forth in my conclusions that the impact or reasonably
foreseeable impact was more than de minimus, that the Union submitted
negotiable proposals.
(15) No status quo ante remedy is sought and no such remedy could be
justified as the detail had terminated before the charge was filed; but
this case is neither rendered moot nor is the need for an appropriate
order to rectify the unfair labor practice rendered less compelling by
the fact that the specific violation has terminated, as the record shows
that the policy and practice of Respondent is to correct staffing
imbalances by detailing Revenue Officers between offices within the
District; that such details have occurred in the past and may
reasonably be anticipated in the future; and, if the unfair labor
practice were not remedied, Respondent would be free to make like
changes of conditions of employment in derogation of its statutory
obligation to bargain.
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 refuse to negotiate, pursuant to Section 6(b)(2) and (3)
of the Statute, timely requests of the National Treasury Employees
Union, Chapter 32, when we exercise a management right and change
conditions of employment of bargaining unit employees by the detail of
bargaining unit employees between offices within the Denver District if
such change results in an impact or a reasonably foreseeable impact on
bargaining unit employees which is more than de minimus.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL notify the National Treasury Employees Union, Chapter 32, the
agent of the exclusive bargaining representative of our employees,
National Treasury Employees Union, of any intention to detail employees
between offices within the Denver District, specifically including the
detail of Revenue Offices to ACS, and, upon request, negotiate with such
representative concerning the procedures to be observed in implementing
such detail and concerning appropriate arrangements for employees
adversely affected by such detail if such change in conditions of
employment results in an impact or a reasonably foreseeable impact on
bargaining unit employees which is more than de minimus.
(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 7,
whose address is: 535 -- 16th Street, Suite 310, Denver, CO 80202, and
whose telephone number is: (303) 837-5224.