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33 FLRA No. 18

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE

WASHINGTON, D.C. AND INTERNAL REVENUE SERVICE

CHICAGO, ILLINOIS DISTRICT OFFICE

(Respondents)

and

NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY

EMPLOYEES UNION, CHAPTER 10

(Charging Party)

5-CA-70262

DECISION AND ORDER

October 14, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondents (collectively referred to as the Respondent). The Charging Party (the Union) filed an opposition to the Respondent's exceptions.

The issue is whether the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it refused to negotiate with the Union over proposals relating to the impact and implementation on unit employees of its decision to relocate various Inspection Service employees.

For the reasons which follow, we conclude that the Respondent violated the Statute when it refused to negotiate with the Union.

II. Background

The National Treasury Employees Union (NTEU) is the exclusive collective bargaining representative of professional and nonprofessional employees of the Department of Treasury, Internal Revenue Service (IRS). NTEU Chapter 10 is an agent of NTEU with respect to IRS employees within the Chicago District Office. At all times material, IRS and NTEU have been parties to a national collective bargaining agreement covering unit employees, including those assigned to the Chicago District Office.

Employees of Respondent IRS Chicago District Office are assigned to headquarters, at 230 South Dearborn Street in downtown Chicago, and 10 widely scattered offices or ports of duty (PODs). Approximately 1300 of the 2000 unit employees are assigned to headquarters.

An Office of Regional Inspector (herein Regional Inspection or Inspection Service) is comprised of an Internal Audit Division and an Internal Security Division (herein Internal Security). The Internal Audit Division is responsible for reviewing regional practices and procedures. Internal Security conducts employee background investigations, administrative misconduct investigations and criminal investigations. Until April 1987, Regional Inspection and all of its employees were located at one office in downtown Chicago. A second office was then opened about six blocks away. Currently, 20 inspectors are assigned to the facility at 35 East Wacker Drive and 4 inspectors are assigned to 230 South Dearborn.

Inspectors are not included in the collective bargaining unit. However, they may interview unit employees in matters alleging criminal or administrative misconduct, or background investigations of newly hired employees. Interviews may involve employees who are the subject of an investigation as well as employees who are "third-party" witnesses. Pursuant to the provisions of section 7114(a)(2)(B) of the Statute, the Union is given an opportunity to be present at the election of the employee involved if the employee has reason to believe that the interview may result in disciplinary action being taken against him.

The time and place of interviews are determined by Internal Security. During 1985 and 1986, the vast majority of employee interviews were conducted at Regional Inspection headquarters.

In December 1986, Respondent IRS Chicago District notified the Union that the Inspection Service group was to be relocated. One of the two possible sites mentioned was a building in the suburb of Lisle, which is over 30 miles from downtown Chicago. The facility is approximately one-half mile from a train station where an employee can board a train which goes to downtown Chicago. There is no public transportation between the train station and the Lisle office.

The parties had various meetings at which the Union expressed its concern that the relocation would place undue transportation hardships on employees. Thereafter, Lisle was designated as the new location for the Inspection Service, where 20 inspectors would be stationed. Four inspectors would remain at 230 South Dearborn.

By letter dated March 3, 1987, the Union submitted the following proposals to the Chicago District for negotiation:

1. Employees having to report to Inspection will do so during their normal work schedule.

2. Employees having to travel to Inspection interviews will be entitled to receive travel advance.

3. Where there is no direct transportation available employees will be allowed and reimbursed for cab fares.

4. The scheduling of interviews will take into account travel time necessary for the employee to travel to and from said interviews during normal duty hours.

5. The scheduling of interviews will take into account the availability of a Union Representative when requested.

6. Union Representatives will be entitled to travel reimbursement.

ALJ at 6.

By letter dated April 21, the Respondent refused to bargain on the Union's proposals, stating its position "that the relocation of the Inspection Service has no effect on the conditions of employment of bargaining unit employees[.]" ALJ at 6-7.

III. Administrative Law Judge's Decision

A. The Relocation Is A Change In Conditions Of Employment

The Judge determined that relocating the majority of the Inspection Service to Lisle constituted a change in a condition of employment of unit employees because traveling to the Lisle site, where 20 of 24 Inspectors would be based, will be "substantially more inconvenient to some employees than reporting to downtown Chicago." ALJ at 9. The Judge also noted that Union representatives who are required to travel to Lisle to represent unit employees during interviews will be inconvenienced also. The Judge concluded that "a new location for interviews has been established and employees not previously required to travel to Lisle will now be faced with that prospect, a change in a prior condition of employment." Id.

B. The Change Requires Bargaining

Applying the standards set out in Department of Health and Human Resources, Social Security Administration, 24 FLRA 403 (1986), the Judge rejected the Respondent's contention that the effect of the relocation on unit employees did not give rise to a bargaining obligation.

C. The Respondent's General Refusal To Bargain Violated the Statute

In view of the Respondent's position that the relocation had no effect which would give rise to an obligation to bargain on the conditions of employment of unit employees, the Judge determined that it was clear that the Respondent "considered it had no obligation to bargain on the relocation regardless of what specific proposals were made by the Union." ALJ at 10. Therefore, apart from the refusal to bargain on the Union's specific proposals, the Judge concluded that the "Respondent also refused to bargain with the Union on any aspect of the relocation and by such conduct violated the Statute." Id.

D. Proposals 3, 5 and 6 Are Negotiable; The Others Are Not

The Judge found that Proposals 1 and 4 are nonnegotiable because they "would directly and excessively interfere with management's right to control its own security practices" under section 7106(a)(1) of the Statute. ALJ at 11, 14. He found that the parties' dispute over Proposal 2 involves differing and arguable interpretations of the parties' collective bargaining agreement and, therefore, is appropriate for resolution under the grievance procedure of that agreement.

The Judge found that Proposals 3, 5 and 6 are negotiable. No exceptions were filed to his determinations concerning Proposals 3 and 5. The Judge found that Proposal 6, which provides that Union representatives would be "entitled to travel reimbursement," does not conflict with the parties' negotiated agreement, which is silent on the matter of reimbursement to a Union representative. He concluded that "the absence of a provision specifically treating reimbursement to Union representatives for travel in connection with investigative interviews does not constitute a waiver of a Statutory right." ALJ at 15. The Judge relied on, among other things, National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6 (1986), enforced sub nom. Department of Treasury v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988).

E. Summary Of The Judge's Conclusions

The Judge found that the Respondent violated Section 7116(a)(1) and (5) of the Statute by (1) its general refusal to bargain on any aspect of its relocation; and (2) its refusal to bargain on Proposals 3, 5 and 6, which the Judge found to be negotiable.

IV. Positions Of The Parties

The Respondent excepts to the Judge's finding that Proposal 6 is negotiable. The Respondent argues that although the contract does not expressly disallow reimbursement for travel by Union officials, the issue is covered by the contract. In addition, the Respondent asserts that its interpretation of the contract is corroborated by past practice. In view of its disagreement with the Union over the meaning of the negotiated agreement, the Respondent argues that the dispute concerns differing and arguable interpretations of the contract. Therefore, the Respondent maintains that the grievance procedure, rather than the unfair labor practice procedure, is the proper forum for resolving the parties' dispute over Proposal 6. According to the Respondent, "the issue is not . . . whether the union has expressly waived its right to negotiate over" reimbursement. Respondent's Brief In Support of Exceptions at 10. Finally, the Respondent argues that U.S. Customs Service, which was relied on by the Judge to find that Proposal 6 is negotiable, was wrongly decided.

The Union filed an opposition to the Respondent's exceptions, supporting the Judge's decision. It argues that the contract does not state that travel expenses are not reimbursable, and that the contract does not constitute a clear and unmistakable waiver of the right to bargain concerning that subject. It also argues that there is no bargaining history to support such a waiver. Further, the Union argues that it could not have waived a right to negotiate for travel expense reimbursement under the contract, since the contract was negotiated before the decision in U.S. Customs Service established such reimbursement to be negotiable. Finally, the Union notes that the Authority's decision in U.S. Customs Service was upheld by the U.S. Court of Appeals for the D.C. Circuit.

V. Analysis and Conclusions

A. As Found by the Judge, The Respondent Refused to Bargain Over the Relocation

For the reasons stated by the Judge, we agree that the proposed relocation constituted a change in conditions of employment which gave rise to a bargaining obligation. Therefore, we agree that the Respondent's general refusal to bargain, apart from the refusal to bargain over specific proposals, violated the Statute. In reaching this conclusion, the Judge correctly applied the principles stated in Social Security Administration, 24 FLRA at 407-08, for determining whether a change in the conditions of employment of bargaining unit employees gives rise to a bargaining obligation.

B. As Recommended by the Judge, Allegations Concerning a Refusal to Bargain Over Proposals 1, 2 and 4 Are Dismissed, and the Refusal to Bargain over Proposals 3 and 5 Resulted in Violations of the Statute

In the absence of exceptions, we adopt the Judge's findings that no violation occurred by the Respondent's refusal to bargain over Proposals 1, 2 and 4. The allegations of the complaint concerning those proposals shall be dismissed. Also in the absence of exceptions, we adopt the Judge's conclusions that the Respondent's refusal to bargain over Proposals 3 and 5 violated section 7116(a)(1) and (5) of the Statute.

C. The Refusal to Bargain Over Proposal 6 Did Not Violate the Statute

1. Proposal 6 Is Not Inconsistent With Applicable

Law or Regulations

What remains is the question of whether Proposal 6 is negotiable. Proposal 6 provides:

Union Representatives will be entitled to travel reimbursement.

The Judge found that the proposal does not conflict with the parties' negotiated agreement, which is silent on the matter of reimbursement to a Union representative. He concluded that the absence of a provision specifically concerning reimbursement to a Union representative does not constitute a waiver of the Union's statutory right to negotiate over that subject.

The Respondent argues that a proposal for reimbursement of travel expenses is not negotiable. It argues that U.S. Customs Service, and the court's enforcement of that decision, was wrongly decided.

For the reasons stated in U.S. Customs Service, we reaffirm that a proposal for reimbursement of union representatives for travel expenses while on official time is negotiable. Therefore, we reject the Respondent's argument that our decision in that case should be reversed. Further, there is no indication that the proposal is inconsistent with any applicable law or regulations. Therefore, the proposal is negotiable.

2. The Dispute Over the Negotiability of Proposal 6 Involves Differing and Arguable Interpretations of the National Agreement

In addition to arguing that Proposal 6 is nonnegotiable, the Respondent maintains that it has no obligation to bargain over the proposal because the proposal conflicts with the parties' collective bargaining agreement. The Respondent argues that although the contract does not expressly disallow reimbursement of travel by Union officials, Article 9, Section 2 of the contract covers the issue. The Respondent states that "whereas the proposal would allow for reimbursement for union officials, the contract does not allow for such reimbursement." Respondent's Brief In Support of Exceptions at 6.

Article 9, Section (2)(K)(8) of the national agreement provides that an employee who is the subject of an examination in connection with an investigation will receive official time and reimbursement for travel in connection with the examination. Article 9, Section (2)(C) and (D) grants official time to Union representatives for such interviews, including travel time. No mention is made of reimbursement for the cost of the travel by Union representatives.

We find, in agreement with the Judge, that the absence of a reference to reimbursement to Union representatives in the negotiated agreement does not establish a clear and unmistakable waiver of the Union's statutory right to bargain. However, we find that the Respondent's position that the proposal conflicts with the contract is plausible and constitutes an arguable interpretation of the contract. Although the contract provides official time for Union representatives, it is silent as to reimbursement of Union representatives for travel. In a parallel section of the contract, employees are provided both official time and reimbursement. Therefore, we conclude that the dispute between the parties over the Respondent's duty to negotiate on proposal 6 involves differing and arguable interpretations of their collective bargaining agreement.

The appropriate forum to resolve a dispute where the negotiability of proposals is a matter of differing and arguable interpretations of a collective bargaining agreement is the parties' grievance and arbitration procedure. Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Denver District, Denver, Colorado, 27 FLRA 664, 668 (1987). Therefore, we shall reverse that part of the Judge's decision and order finding that the Respondent committed an unfair labor practice by refusing to bargain over Union Proposal 6.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we order that the Department of the Treasury, Internal Revenue Service, Chicago, Illinois District Office shall:

1. Cease and desist from:

(a) Failing and refusing to bargain in good faith upon request of National Treasury Employees Union, Chapter 10, the agent for National Treasury Employees Union, the employees' exclusive representative, concerning the impact and implementation of relocating Inspection Service employees from downtown Chicago to Lisle.

(b) In any like or related manner, interfering with, restraining, or coercing 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 Federal Service Labor-Management Relations Statute:

(a) Bargain in good faith upon request of National Treasury Employees Union, Chapter 10, the agent for National Treasury Employees Union, the employees' exclusive representative, concerning the impact and implementation of relocating Inspection Service employees from downtown Chicago to Lisle including bargaining over Proposals 3 and 5 submitted by the Union on March 3, 1987.

(b) Post at its Chicago, Illinois District Office and Ports of Duty copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the District Director and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region V, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

It is further ordered that the allegations of the complaint which have been found to be without merit are dismissed.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail or refuse to bargain in good faith upon request of National Treasury Employees Union, Chapter 10, the agent for National Treasury Employees Union, the employees' exclusive representative, concerning the impact and implementation of relocating Inspection Service employees from downtown Chicago to Lisle.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL bargain in good faith upon request of National Treasury Employees Union, Chapter 10, the agent for National Treasury Employees Union, the employees' exclusive representative, concerning the impact and implementation of relocating Inspection Service employees from downtown Chicago to Lisle including bargaining over Proposals 3 and 5 submitted by the Union on March 3, 1987.

_______________________
(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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region V, whose address is: 175 W. Jackson Boulevard, Suite 1359-A, Chicago, IL 60604 and whose telephone number is: (312) 353-6306.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

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