[ v12 p324 ]
12:0324(74)CA
The decision of the Authority follows:
12 FLRA No. 74
INTERNAL REVENUE SERVICE
SEATTLE DISTRICT
Respondent
and
INTERNAL REVENUE SERVICE
SAN FRANCISCO DISTRICT
Respondent
and
INTERNAL REVENUE SERVICE
LOS ANGELES DISTRICT /1A/
Respondent
and
INTERNAL REVENUE SERVICE
WASHINGTON, D.C.
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 9-CA-882
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondents had engaged in
the unfair labor practices alleged in the complaint and recommending
that they be ordered to cease and desist therefrom and take certain
affirmative action. Thereafter, the Respondents filed exceptions to a
portion of the Judge's Decision and the General Counsel and the Charging
Party filed oppositions to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record in this case, the Authority
hereby adopts the Judge's findings, conclusions and recommendations.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, it is hereby ordered that the Internal
Revenue Service, Seattle District, the Internal Revenue Service, San
Francisco District and the Internal Revenue Service, Washington, D.C.
shall:
1. Cease and desist from:
(a) Failing to comply with the provisions of Section 7115 of the
Federal Service Labor-Management Relations Statute by refusing to honor
a valid written assignment from Darlene T. Bulter and Charles Yim, or
any other unit employee, for the payment of regular and periodic dues to
the National Treasury Employees Union, or any other exclusive
representative.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Reimburse the exclusive representative, National Treasury
Employees Union, in an amount equal to the regular and periodic dues it
would have received from the pay of Darlene T. Butler and Charles Yim
since February 22, 1981, but did not receive as a result of the unlawful
refusal to honor their valid written allotments for such purposes.
(b) Commencing with the first pay period after the date of this
Order, deduct regular and periodic dues from the pay of Darlene T.
Butler and Charles Yim and remit such dues to the National Treasury
Employees Union.
(c) Post at its facilities in Seattle, Washington, and San Francisco,
California 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 appropriate representatives of the Respondents
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.
(d) Notify the Regional Director, Region IX, Federal Labor Relations
Authority, in writing, within 30 days of the date of this Order, as to
what steps have been taken to comply herewith.
Issued, Washington, D.C., July 21, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, 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 to comply with the provisions of Section 7115 of the
Federal Service Labor-Management Relations Statute by refusing to honor
a valid written assignment from Darlene T. Butler and Charles Him, or
any other unit employee, for the payment of regular and periodic dues to
the National Treasury Employees Union, or any other exclusive
representative. 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 Statute. WE WILL reimburse the exclusive representative,
National Treasury Employees Union, in an amount equal to the regular and
periodic dues it would have received from the pay of Darlene T. Butler
and Charles Yim since February 22, 1981, but did not receive as a result
of the unlawful refusal to honor their valid written allotments for such
purpose. WE WILL, commencing with the first pay period after the date
of the Order issued by the Federal Labor Relations Authority, deduct
regular and periodic dues from the pay of Darlene T. Butler and Charles
Yim and remit such dues to the National Treasury Employees Union.
(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 IX,
Federal Labor Relations Authority, whose address is: 530 Bush Street,
Suite 542, San Francisco, California 94108 and whose telephone number
is: (415) 556-8105.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 9-CA-882
Herwood R. Roberson, Esq.
For the Respondent
Stefanie Arthur, Esq.
For the General Counsel
Lucinda Bendat, Esq.
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on March 22,
1982 by the Acting Regional Director for the Federal Labor Relations
Authority, San Francisco, California region, a hearing was held before
the undersigned on June 16, 1982 at San Francisco, California.
This proceeding arose under the Federal Service Labor-Management
Relations Statute (herein called the Statute or Act). It was based on a
second amended charge filed by National Treasury Employees Union (herein
called NTEU or the Union) against the Internal Revenue Service (IRS),
Washington, D.C. and the Internal Revenue Service (IRS), Seattle, San
Francisco, and Los Angeles Districts (herein collectively called
Respondents).
The Complaint alleged, in substance, that on or about February 22,
1981 Respondents IRS and IRS Seattle unilaterally terminated previously
authorized Union dues allotment of employee Darlene T. Butler without
the said employee having revoked authorization for said dues allotment;
that on or about February 22, 1981 Respondents IRS and IRS San Francisco
unilaterally terminated previously authorized Union dues allotment of
employee Charles Yim without the said employee having revoked
authorization for said dues allotment; that on or about April 19, 1981
Respondents IRS and IRS Los Angeles unilaterally terminated previously
authorized Union dues allotment of employee Paul Johnson, and in April
or May, 1981 unilaterally deducted from the Union's dues allotment
monies equal to 13 pay periods of Union dues for Johnson /1/ - all in
violation of Section 7115(a)(1), (5), and (8) of the Statute.
Respondents filed an answer, dated April 13, 1982, to the Complaint
in which they admitted terminating the dues allotments of the
aforementioned employees, as well as deducting the said monies from the
Union's dues allotment, without the said employees having revoked
authorization for the allotment. The answer, however, denied the
commission of any unfair labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter briefs were filed with the
undersigned which have been duly considered.
Upon the entire record /2/ herein, from my observation of the
witnesses and their demeanor, and from all of the testimony and evidence
adduced at the hearing, I make the following findings and conclusions:
Findings of Fact.
1. At all times material herein the Union has been, and still is,
the exclusive bargaining representative for all professional and
nonprofessional employees of the Internal Revenue Service, District,
Region and National office. A certification for the aforesaid
consolidated unit was issued in 1977. It excluded therefrom, in
addition to certain specified classes of employees, all management
officials, supervisors, and confidential employees. /3/
2. Prior to July, 1979 Darlene T. Butler (herein called Butler)
occupied the position of Management Assistance, GS-5, in the IRS
Seattle, Washington District. While holding that position, which was in
the bargaining unit and under the Space Section of the Facilities
Management Branch, Butler signed a form authorizing the agency to
withhold Union dues from her paycheck.
3. In or about July, 1977 Butler assumed the position of Management
Analyst (official title)/Space Analyst (organizational title) in the
said Seattle District. At no time, while occupying this position, did
Butler revoke her dues allotment authorization.
4. In 1976 Charles Yim (herein called Yim) was a Tax Examiner, GS 6,
in the Agency's Centralized Services Branch of the Audit Division.
While in said position, which was in the bargaining unit, Yim also
authorized the withholding by the Agency of Union dues from his
paycheck.
5. On October 21, 1979 Yim assumed the position of Management
Analyst (official title)/Space Planner (organizational title). This
position was under the Space Management and Information Systems Section
of the Facilities Management Branch, San Francisco District. There are
four such Space Planners in this Section and Yim is assigned the South
Bay Area. At no time, while occupying this position, did Yim revoke his
dues allotment authorization.
6. The Position Description for Management Analyst (Space Analyst),
occupied by Butler /4/ at the IRS Seattle District, provided, inter
alia, that the incumbent pursue duties /5/ as follows:
(a). Responsible for District-wide Space Management and Safety
programs. Conducts studies and performs analysis to improve
effectiveness of the programs. Implements guidelines to National,
Regional and General Services Administration offices.
(b). Acts as a technical resource for District Director,
Division Chiefs and Managers.
(c). Represents the District as a liaison with GSA.
(d). Develops intermediate and long range plans and work
schedules including acquisition or release of space based on
personnel staffing, operational activities and National and
Regional goals.
(e). Recommends establishment of new offices or closing of old
offices as needed.
(f). Plans segments of studies, surveys organizational space
requirements, and follows up on implementations.
(g). Participates in evaluation of effectiveness of space
designs upon the operational activities of the organizations.
(h). Prepares written reports of findings, applying knowledge
of substantive nature pertaining to space management concepts, and
recommends for improvement of Space Management.
(i). Completes space proposals for District and Regional
approval including furniture and construction floor plans.
(j). Reviews bids and potential space proposed by GSA - visits
buildings to determine if space is suitable and makes
recommendations on acceptance.
(k). Studies and analyzes equipment to determine requirements
for wiring, ventilation, sound control, floor load and lighting
needs.
(l). Plans for construction, enlargement, remodeling or
reduction of offices.
(m). Attends meetings with program officials to present
findings and work out space or program problems.
(n). Prepares day-by-day work assignments for management
assistant, /6/ where such an assistant is assigned.
(o). In respect to safety, the incumbent is responsible for
inspecting facilities re compliance with safety requirements,
initiates action to meet safety standards, processes accident
reports and recommends action, promotes safety through various
means, and acts as a technical resource to Seattle District Safety
Advisory Committee.
7. The Position Description for Management Analyst (Space Planner),
occupied by Charles Yim at the IRS San Francisco District, provided,
inter alia, that the incumbent pursue duties /7/ as follows:
(a) Based on observation of work processes and through
discussions with managers and employees, he determines efficient
office layouts suitable for needs of the organization.
(b) Develops arrangement drawings and layouts for interior of
office space, as well as plans showing location of work stations,
corridors, and equipments, placement of telephones, etc.
(c) Develops plans showing, location of work stations,
corridors, office equipment, etc.
(d) Develops plans and designs for employees' work stations and
spaces.
(e) Participates in estimating costs for office conversions;
tours offices with GSA and recommends selection of office sites.
(f) Assures that contractors perform to specifications on such
matters as painting walls, installing carpets and arranging
furniture.
(g) Provides advice to district officials, review and evaluates
procedures and services. /8/
8. Record facts reflect that both Butler and Yim, as Management
Analysts /9/ perform substantially all of the duties set forth in their
job descriptions. In general, they both are responsible for handling,
in their respective areas, problems concerning space, albeit the
acquisition, expansion, termination, or modification of spatial needs.
To this extent, each divides his or her time about equally between space
planning and program maintenance.
9. While the M/A must obtain approval of his recommendations re
space, the individual does attend meetings with chiefs of a Section or
Region and offers technical assistance. However, the M/A does not
attend management training sessions. He does, however, have access to
information re reorganization within IRS involving creation of new
divisions or abolition of old ones, as well as the moving of office
locations.
10. The M/A may make minor changes (adding a desk) without formal
approval; he may request GSA to make certain repairs (electrical
outlets, torn carpet) without requiring supervisor's /10/ approval.
Although the M/A may exercise independent judgment in performing his
duties, as set forth hereinabove, tasks of a substantive nature which
are to be undertaken must be cleared with the supervisor. The M/A is
responsible for soliciting the approval of all parties affected by major
changes, including other managers, Division Chiefs, and the Union
stewards. In this respect he must deal with various managers at posts
of duty as well as at headquarters.
11. The M/A is not involved in negotiations with the bargaining
representative concerning labor relations. However, he does inform the
Union of any significant changes involving space or security. If the
M/A makes proposals re space modifications, he will discuss these with
the Union and, where involved, show floor plans to the bargaining agent.
When the M/A has worked on a particular project, he may attend a
meeting held by the Labor-Management Relations Committee. In the event
of a safety hazard, the M/A might accompany the union steward to check
into it. A report to management will then be prepared by the M/A.
12. By letter dated January 5, 1981 Steven C. Weaver, Respondents'
Labor Relations Specialist, notified Butler and 11 other employees that
they occupied a nonbargaining unit position; that actions would be
initiated to terminate their union dues withholding.
13. By letter dated January 22, 1981 Respondents' John Moore, Chief,
Labor Relations, notified N. C. Nichols, President, NTEU Chapter 20 at
San Francisco, that Charles Yim and nine other employees were
erroneously on dues withholding as managerial personnel; that their
dues withholding would be terminated and effective on the February 8,
1981 pay period.
14. On February 22, 1981 Respondent IRS Seattle terminated the dues
allotment of Butler who, on that date, was a GS-7 M/A; Respondent San
Francisco on February 22, 1981 terminated the dues allotment of Yim, who
on that date, was a GS-9 M/A. The basis for these actions rested on the
conclusion that both Butler and Yim were managerial personnel and not
within the bargaining unit.
Conclusions
It is contended by the General Counsel that the respective
Respondents violated Section 7116(a)(1), (5) and (8) of the Statute by
unlawfully terminating the dues deductions for employees Butler and Yim.
These individuals, who held positions of Management Analyst (M/A) -
Space Analyst and Management Analyst (M/A) - Space Planner respectively,
are deemed to be within the bargaining unit as certified in 1977. Thus,
it is alleged Respondents acted illegally when it discontinued
withholding their union dues in the absence of an authorized revocation
from these employees.
Respondents take issue with the foregoing contentions and deny any
wrongdoing by the termination of said dues deductions. In the main they
assert (1) it is not proper to litigate unit determinations, which is
necessary herein before a violation may be found, in unfair labor
practice proceedings; (2) assuming arguendo, the unit placement of the
M/A is properly litigable herein, both Butler and Yim as occupants of
such position are managerial personnel and/or confidential employees so
as not to be within bargaining unit. Accordingly, it is argued
Respondents rightfully terminated the dues deductions for said
individuals despite the absence of any revocation from either person.
(1) Several decisions by the Authority have recognized the propriety
of making a unit determination in an unfair labor practice proceeding.
Thus, in The Adjutant General-Georgia, Georgia National Guard,
Department of Defense, Atlanta, Georgia, 2 FLRA No. 92 the Activity
added certain supervisory duties to a position described as small shop
supervisors. Since management deemed the latter to occupy a supervisory
status, it suspended dues withholding for said individuals. The union
challenged this suspension via a complaint alleging an unfair labor
practice against the Activity. The Authority found that, except for one
employee, all these particular small shop personnel were supervisors;
that the complaint was dismissed in that regard. /11/ To the same
effect see North Carolina Air National Guard, Charlotte, North Carolina,
4 FLRA No. 44 (involving supervisory status of small shop chiefs).
Respondents, while conceding the issuance of the cited decisions by
the Authority, argue that these are distinguishable from the case at
bar. They stress the fact that the employer in said cases altered or
changed the status of the positions in question, whereas Respondents
herein never modified or added to the duties of the M/A position.
Further, management in the instant matter adverts to the fact that it
never changed its contention, or departed from its assumption-- not
challenged by the Union, that the M/A is outside the bargaining unit.
Accordingly, it is urged that the prior Authority decisions involving
unit determinations in an unfair labor practice matter involved special
circumstances justifying a different result in the case at bar.
While it may well be that Respondents did deem the M/A to be excluded
from the bargaining unit and the Union did not challenge the eligible
list of voters in the 1977 election, I do not subscribe to the view that
this bars a unit determination herein. The classification of M/A was
not specifically excluded from the appropriate unit in the
certification. Further, the record herein does not reflect that the
Union agreed or stipulated that the M/A was a managerial employee and
excluded from the unit. Thus, the absence of this position from the
eligible voting list in 1977 does not, in my opinion, suffice to depart
from the case law which permits unit determinations in unfair labor
practice proceedings. Neither do I accept the contention that, since
unit determinations are not relitigable, the present controversy should
bar a unit consideration. The status of M/A was never litigated by the
parties nor was a determination made with respect thereto in the
representation proceeding.
Moreover, the fact that, unlike herein, management in the cited
cases, supra, took action which raised the status of employees to
supervisors-- and thus put them outside the unit-- does not warrant a
different conclusion. Under Section 7115(b)(1) of the Statute an
allotment for the deduction of dues terminates when "the agreement
between the agency and the exclusive representative involved ceases to
be applicable to the employee." A reasonable interpretation of this
statutory language requires the conclusion that when the particular
employee, at any time, is not covered by the agreement, the termination
of dues is warranted. Contrariwise, if the employee classification is,
during the term of the agreement, properly included within the unit, it
must follow that no termination of dues is justified without a
revocation of the unit employee. Thus, the fact that management did, or
did not, change the incumbent's duties should not affect the right to
litigate in the unfair labor practice case whether the employee is
within the appropriate unit.
Accordingly, I conclude that the question as to whether the M/A
should be deemed within the unit and covered by the agreement between
the parties may, as a preliminary consideration to whether the
termination of their dues withholding was proper, be determined herein.
(2) The critical issue now to be determined is whether M/A Butler and
M/A Yim were in fact managerial or confidential employees when the
respective Respondents unilaterally terminated the dues withholding for
each individual. If it be concluded that these employees were not part
of management, or employed in a confidential capacity, such termination
without authorization constituted noncompliance with Section 7115(a)
/12/ of the Statute and is deemed violative of Section 7116(a)(1) and
(8). National Archives & Records Service and National Archives Trust
Board, General Services Administration, Washington, D.C. 9 FLRA No. 50;
Defense Logistics, et al., 5 FLRA No. 21.
It is clear that under Section 7103(a)(2) of the Statute a management
official is not viewed as an 'employee' and thus would be outside an
appropriate unit. Under Section 7103(a)(11) a management official means
"an individual employed by an agency in a position the duties and
responsibilities of which require or authorize the individual to
formulate, determine, or influence the policies of the agency."
Considerable attention was devoted to this definition by the Authority
in Department of the Navy, Automatic Data Processing Selection Office, 7
FLRA No. 24 which involved a unit clarification determination. It was
stated therein that a management official under the aforesaid sections
of the Statute includes those who: (1) create, establish or prescribe
general principles, plans or courses of action for an agency; (2)
decide upon or settle upon general principle, plans or courses of action
for an agency; or (3) bring about or obtain a result as to the adoption
of general principles, plans or courses of action for an agency.
In the brief Respondents lay stress upon the fact that the M/A, after
developing and evaluating proposals, advises management on improving
work methods and procedures as well as management controls. Further,
they advert to the fact that the M/A makes recommendations which are
normally not changed; that the M/A serves as the agency's liaison with
GSA in selecting facilities; and the M/A exercises considerable
independence of action in pursuing his duties.
Applying the yardsticks enunciated for determining whether an
individual is, in truth, a management official, I am persuaded that
M/AButler and M/A Yim are not managerial individuals. The record
reveals that they are primarily space analysts or planners, whose
expertise is utilized by the agency when the latter makes decisions as
to increasing, modifying, or releasing existing space facilities. In
connection therewith, the M/A may design offices and assure that the
space is utilized in proper fashion. Nevertheless, any significant
change in space plans require approval from the office manager, the
Division Chief and the District Director. The floor plans prepared by
the M/A attest to his expertise in the field, but they must be approved
by the higher echelon. The records of space kept by the M/A are
intended to insure maintenance. Further, the duties concerned with
safety involve, for the most part, inspection of facilities to assure
compliance with safety precautions. Thus, it becomes apparent to the
undersigned that Butler and Yim are valuable aids to management in
planning, developing, analyzing, and implementing space requirements for
their respective Districts. However, this is not, in my opinion, the
kind of work which creates, settles or brings about the agency's general
plans or course of action. The position is akin, in this respect, to
the Computer Equipment Analyst in Department of the Navy, Automatic Data
Processing, supra, which the Authority characterized as a valuable
expert or professional whose actions assist-- but do not shape--
policies in connection with procurement.
It is true that the M/A exercises a certain degree of independent
judgment in making determinations re space needs of the agency.
Moreover, the M/A is a representative of the employee when meeting with
GSA in respect to space requirements. Nevertheless, such role occupied
by this employee is not analogous to a professional expert, upon whose
advice management depends considerably. I agree with General Counsel
that the M/A is more of a Technical Assistant to management than a
managerial employee. Reviewing of the basic duties of this individual,
I am constrained to conclude that essentially the M/A does not formulate
or determine Respondents' policies. See General Services
Administration, National Archives and Records Service, Washington, D.C.,
8 FLRA No. 73 (involving Management Analyst Coordinators). The Analysts
in the cited case were deemed by the Authority to assist in
implementing, rather than shaping, management's policy. Further, where
the Analyst's role involved rendering resource information or
recommendations, rather than active participants in ultimate
determinations, he was not found to be a managerial employee. The same
was true in Department of Defense, Department of the Army, et al., 8
FLRA No. 127 where alleged management officials (including management
analysts( were found not to be managerial employees. As here, these
individuals were engaged primarily in enforcement and implementation of
higher level policies. Their recommendations are advisory in nature and
go through several supervisory levels. I conclude that the same holds
true in the case at bar with respect to M/A Butler and M/A Yim and,
accordingly, find they were not managerial officials when Respondents
terminated their dues withholding on February 22, 1981.
The employer herein also maintains that the M/A is a 'confidential'
employee within the meaning of Section 7103(a)(13) of the Statute.
Thus, it argues, Butler and Yim are not properly in the unit and the
termination of dues withholding for each was proper. In this respect,
Respondents cite General Services Administration, National Archives and
Records Service, Washington, D.C., supra, where the Authority found a
Management Analyst, GS 13, Program Management and Coordination Division
to be a "confidential employee".
Under the Statute a confidential employee is described as "an
employee who acts in a confidential capacity with respect to an
individual who formulates or effectuates management policies in the
field of labor-management relations". Respondents contend that the
M/Aherein deal with space utilization requirements; that these are
sensitive issues in the field of labor relations; and, since the M/A
meets with the Union re changes to be made in this area, his role falls
within the definition of "confidential employee". I do not agree.
Neither Butler nor Yim, in talking to union officials, plays any part in
formulating management policies in labor-management relations. They are
not concerned with grievances, arbitration, or other matters pertaining
to dealings between management and employees, nor are they involved in
bargaining between the agency and the Union. While the M/Amay discuss
floor plans with the union representatives, in order to ascertain the
position of the latter in regard thereto, this discussion does not
concern unit determinations, contract proposals, unfair labor practices,
or collective bargaining matters. Moreover, mere access by the M/A to
information, proposals, and plans with respect to space modifications--
which may be transmitted to the Union-- does not warrant the conclusion
that he acts in a 'confidential' capacity. /13/ See Red River Army
Depot, Texarkana, Texas, 2 FLRA No. 82.
Accordingly, and on the basis of the foregoing, I am satisfied that
neither Darlene T. Butler, Management Analyst (Space Analyst) nor
Charles Yim, Management Analyst (Space Planner) was a managerial or
confidential employee on February 22, 1981; that the termination of
their dues withholding without proper authorization was violative of
Section 7116(a)(1) and (8) of the Statute. /14/
Remedy
In resisting a status quo ante remedy herein Respondents urge that a
good faith doubt existed concerning the status of the M/A herein. Thus,
it is contended, the termination of dues allotment by the employer was
not the type of conduct which should warrant such relief. Respondents
allude to the case of The Adjutant General - Georgia, Georgia National
Guard, Department of Defense, 2 FLRA 92.
While it is true that reimbursement was not ordered in the cited
case, the latter arose under Executive Order 11491, as amended, and the
Assistant Secretary concluded such a remedy was not necessary therein.
However the instant matter is covered by Section 7115 of the Statute
which spells out, in contrast to the Executive Order, the obligations of
the agency in regard to allotments which must be made to representatives
upon proper authorization by an employee. Further, most recent
determinations by the Authority have ordered reimbursement to the union
of dues where the agency unlawfully terminated the withholding thereof.
Defense Logistics Agency, 5 FLRA 21; National Archives and Records
Service, et al., 9 FLRA No. 50.
The Authority took pains in the Defense Logistics case, supra, to
distinguish the facts therein from those found in Georgia National
Guard, supra. It mentioned that the latter case involved a change in
circumstances-- the assignment of supervisory responsibilities to 21 of
22 small shop chiefs which resulted in their exclusion from the
bargaining unit. Thus, the reimbursement of dues to the bargaining
agent was not warranted since the suspension of dues withholding for
most all employees was proper. No such change in duties by management
resulted herein which excluded Butler and Yim from the bargaining unit.
The following language employed by the Authority in the Defense
Logistics case reflects that restitution of such dues to the bargaining
agent will normally be required:
"In the Authority's view, it would promote the purposes of the
Statute in the circumstances of the instant case to modify the
remedial order recommended by the Administrative Law Judge so as
to require Respondents to reimburse AFGE in the manner stated
above . . . the language and legislative history of Section
7115(a) clearly reflect the intent of Congress to give employees
in units of exclusive recognition the sole discretion whether to
authorize union dues deduction from their pay, and to require
agencies to honor such authorizations."
Moreover, the most recent decision by the Authority, National Archives
and Records Service et al. supra, ordered the employer therein to
reimburse the exclusive representative where it removed an employee from
dues withholding. The respondent took the position that the employee
was a supervisor. Since it was conceded the individual was not a
supervisor, and no revocation had been executed by him, the employer was
directed to honor the withholding authorization, and reimburse the union
in an amount equal to the dues the representative would have received
but for the unlawful refusal to honor said dues withholding
authorization.
Thus, I feel bound by the aforesaid decisions in this regard to grant
the remedy requested by the General Counsel. Accordingly, I conclude
that a proper remedy herein requires that Respondents reimburse the
Union in an amount equal to the dues the latter would have received from
the pay of Darlene T. Butler and Charles Yim, but did not receive as a
result of the unlawful refusal to honor the written allotments of said
employees for such purpose. /15/
Having found that Respondent violated the Statute as aforesaid, I
recommend the Authority adopt the following order:
ORDER
Pursuant to Section 7118(a)(7) of the Federal Service
Labor-Management Relations Statute and Section 2423.29 of the Rules and
Regulations, it is hereby ORDERED that the Internal Revenue Service,
Seattle District and Internal Revenue Service, San Francisco District,
and Internal Revenue Service, Washington, D.C., shall:
1. Cease and desist from:
(a) Refusing to comply with the provisions of Section 7115 of
the Federal Service Labor-Management Relations Statute by refusing
to honor a valid written assignment from Darlene T. Butler and
Charles Yim, or any other unit employee, for the payment of
regular and periodic dues to National Treasury Employees Union, or
any other exclusive representative.
(b) Interfering with, restraining, or coercing unit employees
by refusing to honor and accept a valid written assignment from
Darlene T. Butler and Charles Yim, or any other unit employee, for
the payment of regular and periodic dues to National Treasury
Employees Union, or any other exclusive representative.
(c) In any like or related manner interfering with,
restraining, or coercing any employee in the exercise of any right
assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Reimburse the exclusive representative, National Treasury
Employees Union, in an amount equal to the regular and periodic
dues it would have received from the pay of Darlene T. Butler and
Charles Yim, since February 22, 1981, but did not receive as a
result of the unlawful refusal to honor their valid written
allotments for such purpose.
(b) Commencing with the first pay period after the date of this
Order, deduct regular and periodic dues from the pay of Darlene T.
Butler and Charles Yim and remit such dues to National Treasury
Employees Union.
(c) Post at its facilities in Seattle, Washington, San
Francisco, California, and Washington, D.C. copies of the attached
notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by
the Director of the Hospital and 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. The Commander shall take reasonable steps to
insure that such notices are not altered, defaced, or covered by
any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, Federal
Labor Relations Authority, in writing, within 30 days from the
date of the Order, as to what steps have been taken to comply
herewith.
WILLIAM NAIMARK
Administrative Law Judge
Date: October 25, 1982
Washington, D.C.
APPENDIX A
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 comply with the provisions of Section 7115 of the
Federal Service Labor-Management Relations Statute by refusing to honor
a valid written assignment from Darlene T. Butler and Charles Yim, or
any other unit employee, for the payment of regular and periodic dues to
National Treasury Employees Union, or any other exclusive
representative. WE WILL NOT interfere with, restrain, or coerce unit
employees by refusing to honor and accept a valid written assignment
from Darlene T. Butler and Charles Yim, or any other unit employee, for
the payment of regular and periodic dues to National Treasury Employees
Union, or any other exclusive representative. WE WILL NOT in any like
or related manner interfere with, restrain, or coerce any employee in
the exercise of any right assured by the Statute. WE WILL reimburse the
exclusive representative, National Treasury Employees Union, in an
amount equal to the regular and periodic dues it would have received
from the pay of Darlene T. Butler and Charles Yim, since February 22,
1981, but did not receive as a result of the unlawful refusal to honor
their valid written allotments for such purpose. WE WILL, commencing
with the first pay period after the date of this Order, deduct regular
and periodic dues from the pay of Darlene T. Butler and Charles Yim and
remit such dues to National Treasury Employees Union.
(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 9, whose address is: 530
Bush Street, Suite 542, San Francisco, California 94108 and whose
telephone number is: (415) 556-8105.
--------------- FOOTNOTES$ ---------------
/1A/ The allegations in the complaint involving this Respondent were
withdrawn at the hearing by the General Counsel.
/1/ At the hearing General Counsel withdrew paragraphs 7, 10, and 13
of the Complaint. The allegations so withdrawn pertain to actions taken
by the Respondent IRS Los Angeles District against Paul Johnson.
Accordingly, the remaining allegations at issue concern actions taken by
Respondent IRS and Respondent IRS Seattle District against Darlene
Butler, as well as those taken by Respondent IRS and Respondent IRS San
Francisco District against Charles Yim.
/2/ In their post-hearing briefs both General Counsel and Respondents
moved to correct the transcript in respect to certain specified errors.
No objection having been interposed as to either motion, and it
appearing that the corrections are proper, both motions are granted.
The transcript is hereby corrected as reflected in Appendix B which is
annexed to this decision.
General Counsel, in its post-hearing brief, also requests the
transcript be corrected to reflect an exchange, apparently off the
record, between the undersigned and Respondents' counsel. This exchange
of words related to the limited purpose for which Respondents' Exhibit
No. 7 was offered and received in evidence. I am satisfied, based on
the transcript, that the record reflects the said exhibit was received
for the limited purpose of showing it was Respondents' position that the
disputed classification herein was excluded from the unit. Accordingly,
that motion to correct the transcript by including off the record
remarks is denied.
/3/ The record reflects that the bargaining unit list prepared in
1977 denoted that Management Analysts (Space Planners) were
non-bargaining unit positions; that until the present controversy
management was never advised that the Union deemed this classification
to be within the bargaining unit. Moreover, prior to this proceeding,
the Union never raised any question re the unit placement of the
Management Analysts (Space Planners).
/4/ At the time she first held this position Butler was a trainee at
a GS 5 level. The Position Description is graded at GS 11 for the full
working level.
/5/ G.C. Exhibit No. 2 contains all the duties listed on the Position
Description. The more significant duties are summarized and set forth
herein by the undersigned.
/6/ This employee is concededly within the bargaining unit.
/7/ At the time he was removed from dues withholding Yim held this
position as a GS 9. The Position Description, including the duties
thereof, for the incumbent at that grade level are contained in G.C.
Exhibit No. 3. These duties overlap those hereinabove set forth as to
the Management Analyst (Space Analyst) in the Seattle District, but are
summarized herein. Respondents' Exhibit No. 12 is the Position
Description for Management Analyst (Space Planner) at San Francisco
District for GS 11 level, which Yim occupied subsequent to his removal
from dues withholding.
/8/ Under this Position Description the incumbent must have the
ability to develop floor plans and layouts, analyze office procedures
and workflow, and prepare written recommendations. He must have
knowledge of interior design and office equipment, as well as open
office landscaping.
/9/ For simplification the Position Management Analyst (Space Analyst
or Space Planners) hereinafter will be designated as M/A.
/10/ In 1981 Butler's supervisor was chief of the Facilities Branch;
Yim's is supervised by Chief of the Space Information Systems. Neither
Butler nor Yim supervises other employees.
/11/ As to the sole employee found by the Authority not to be a
supervisor, a violation was found to have occurred and a remedial order
was issued.
/12/ Under this Section an agency is requested to honor a written
assignment from an employee, in an appropriate unit, which authorizes
the agency to deduct dues from the pay of the employee and make an
allotment thereof.
/13/ The case of General Services Administration, National Archives
and Records Service, supra, is inapposite. The Management Analyst,
Program Management and Coordination Division, GS-13, therein was a
member of management's negotiating team dealing with the union daily.
As such, he was deemed to act in a confidential capacity with respect to
management officials who formulated policies in labor-relations. The
Space Planner or Analyst herein has no such relationship with the Union.
/14/ Since the termination of dues withholdings did not result from
or accompany, a withdrawal of Union recognition by the agency or the
Respondent Districts, I shall not find that a violation of Section
7116(a)(5) has occurred. See National Archives and Records Service, et
al., supra.
/15/ The contention that Respondents should not be required to act at
their peril, because of a good faith doubt as to the status of these
individuals, does not exculpate the agency. An option was afforded the
employer, under the Statute, to file a clarification petition and thus
have resolved the question as to whether Butler and Yim were managerial
officials. At the same time the agency could have deferred terminating
the dues withholding until a determination was made in the
representation proceeding.