Internal Revenue Service, Austin Service Center (Respondent) and National Treasury Employees Union and NTEU Chapter 72 (Complainants) (Authority decision, February 29, 1980)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The IRS changed three Austin Service Center employees from an evening shift to a day shift so they could testify at a Civil Service Commission hearing. It gave the union no advance notice, and the employees had only a short rest between shifts. The Authority accepted that the agency had to make the witnesses available and did not have to bargain over that basic decision. It nevertheless found that the one day schedule change significantly affected working conditions, so the agency had to notify the union and offer to bargain over the change's impact and implementation. The Authority found unfair labor practices under sections 19(a)(1) and (6) of Executive Order 11491 and ordered the IRS to stop making such changes without the required notice and opportunity to bargain. The case reached the Authority on a stipulated record, without a judge's decision to review.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); Executive Order 11491, sections 19(a)(1) and (6).
• Outcome: Unfair labor practices found; IRS ordered to provide notice and an opportunity to bargain over impact and implementation.
• Key point: A necessary one day schedule change still required bargaining over its effect on employees.

Full text (FLRA public release)

[ v02 p769 ]

02:0769(97)CA

The decision of the Authority follows:

2 FLRA No.97

INTERNAL REVENUE SERVICE,
AUSTIN SERVICE CENTER
Respondent

and

NATIONAL TREASURY EMPLOYEES UNION
AND NTEU CHAPTER 72
Complainant

Assistant Secretary
Case No. 63-8897(CA)

DECISION AND ORDER

THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE ORDER
TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS AUTHORITY OF REGIONAL
DIRECTOR GABRIEL PERALES, JR. IN ACCORDANCE WITH SECTION 206.5 OF THE
RULES AND REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY.

THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(44 F.R. 44741, JULY 30, 1979). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).

UPON CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASE,
INCLUDING THE PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND
THE BRIEFS SUBMITTED BY THE RESPONDENT AND THE COMPLAINANT, THE
AUTHORITY FINDS:

THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER BY CHANGING THE HOURS OF DUTY OF THREE
BARGAINING UNIT EMPLOYEES WITHOUT FIRST NOTIFYING COMPLAINANT, AND
AFFORDING IT AN OPPORTUNITY TO NEGOTIATE CONCERNING THE IMPACT AND
IMPLEMENTATION OF THE CHANGE. THE RESPONDENT CONTENDS THAT THE CHANGE
OF HOURS OF DUTY FOR THE THREE BARGAINING UNIT EMPLOYEES WAS
INSUBSTANTIAL AND DID NOT CONSTITUTE A CHANGE IN WORKING CONDITIONS. AS
A RESULT, THE RESPONDENT CONTENDS THAT IT WAS NOT OBLIGATED TO BARGAIN
WITH THE COMPLAINANT OVER THE IMPACT AND IMPLEMENTATION OF ITS ACTION.
THE RESPONDENT ALSO ARGUES THAT ITS ACTIONS WERE MERELY IN CONFORMITY
WITH THE CIVIL SERVICE COMMISSION REGULATIONS AND AS A RESULT THERE WAS
NOTHING TO NEGOTIATE WITH COMPLAINANT. THE RESPONDENT FURTHER ARGUES
THAT IF IT WAS OBLIGATED TO NEGOTIATE THE IMPACT AND IMPLEMENTATION OF
ITS DECISION, ITS FAILURE TO DO SO WAS DE MINIMIS AND DID NOT CONSTITUTE
AN UNFAIR LABOR PRACTICE.

THE UNDISPUTED FACTS, AS STIPULATED BY THE PARTIES, ARE AS FOLLOWS:

AUSTIN SERVICE CENTER IN AUSTIN, TEXAS, IS ONE OF THE TEN SERVICE
CENTERS IN THE INTERNAL REVENUE SERVICE. NATIONAL TREASURY EMPLOYEES
UNION CHAPTER 72 (NTEU) IS, AND WAS AT ALL TIME PERTINENT TO THE
COMPLAINT, THE EXCLUSIVE REPRESENTATIVE OF THE BARGAINING UNIT EMPLOYEES
IN THE AUSTIN SERVICE CENTER.

ON MAY 2, 1978, THE FEDERAL EMPLOYEES APPEALS AUTHORITY (FEAA) OF THE
UNITED STATES CIVIL SERVICE COMMISSION CONDUCTED A HEARING PURSUANT TO 5
C.F.R. 772,307 AT THE AUSTIN SERVICE CENTER IN THE MATTER OF THE ADVERSE
ACTION APPEAL OF RICHARD COX, A BARGAINING UNIT EMPLOYEE. COX WAS
REPRESENTED PRIVATE COUNSEL. PRIOR TO THE HEARING, COX REQUESTED THAT
CERTAIN EMPLOYEES OF THE RESPONDENT APPEAR AS WITNESSES IN HIS BEHALF.
IN ACCORDANCE WITH 5 C.F.R. 772.307(C)(2), THE FEAA REQUESTED
RESPONDENT TO MAKE THESE EMPLOYEES AVAILABLE TO APPEAR AS WITNESSES AT
THE HEARING. /1/ THE FEAA REQUEST TO RESPONDENT WAS CONVEYED BY LETTER
DATED APRIL 14, 1978, AND RESPONDENT RECEIVED THIS LETTER ON APRIL 19,
1978. AMONG THOSE WHOM RESPONDENT WAS REQUESTED TO MAKE AVAILABLE TO
APPEAR AS WITNESSES WERE THREE BARGAINING UNIT EMPLOYEES-- FREDERICK
OBERDORF, MARK TUREK, AND LORNA BOECK-- WHO WORKED ON THE 5:00 P.M. TO
1:30 A.M. SHIFT IN THE ERROR CORRECTION SECTION. BECAUSE THE HEARING
WAS SCHEDULED TO COMMENCE AT 8:30 A.M., MAY 2, 1978, RESPONDENT CHANGED
THESE EMPLOYEES' HOURS OF DUTY TO THE 7:30 A.M. TO 4:00 P.M. SHIFT FOR
THE DAY OF THE HEARING ONLY.

EMPLOYEES OBERDORF AND BOECK WERE NOTIFIED OF THEIR HOURS OF DUTY
CHANGE AT APPROXIMATELY 6:00 P.M., MAY 1, 1978, THE EVENING BEFORE THE
FEAA HEARING. AT THAT TIME, THEY WERE TOLD BY THEIR SUPERVISOR THAT IF
THEY WISHED, THEY COULD TAKE ANNUAL LEAVE FOR THE REMAINING SEVEN HOURS
OF THEIR SHIFT TO GO HOME AND REST BEFORE THE HEARING. THE TWO
EMPLOYEES DECLINED, AND REMAINED AT WORK. BOECK WENT HOME AT 1:30 A.M.
ON MAY 2, 1978, UPON THE CONCLUSION OF HER NORMAL SHIFT. OBERDORF
VOLUNTARILY WORKED OVERTIME UNTIL APPROXIMATELY 3:00 A.M., MAY 2, 1978.
TUREK, WHO WORKED IN ANOTHER UNIT, ALSO WAS ADVISED OF THE CHANGE IN HIS
HOURS OF DUTY AT APPROXIMATELY 6:00 P.M. ON MAY 1, 1978. HE WAS NOT
GIVEN THE OPTION OF USING ANNUAL LEAVE THAT EVENING, AND HE WORKED UNTIL
1:30 A.M. ON MAY 2, 1978, HIS NORMAL QUITTING TIME. OBERDORF, BOECK,
AND TUREK REPORTED BACK TO WORK AT 7:30 A.M. ON MAY 2, 1978, AS A RESULT
OF THE CHANGE IN THEIR HOURS OF DUTY. THE FEAA HEARING BEGAN AT 8:30
A.M., AS SCHEDULED. LATER THAT MORNING ALL THREE EMPLOYEES TESTIFIED AT
THE HEARING.

BECAUSE OF FATIGUE, OBERDORF FAILED TO COMPLETE HIS SHIFT ON MAY 2,
1978, AFTER THE CONCLUSION OF HIS TESTIMONY. USING FOUR HOURS OF SICK
LEAVE, HE WENT HOME AT 11:30 A.M. BOECK ALSO WENT HOME AT 11:30 A.M.
BECAUSE OF FATIGUE, BUT SHE HAD TO ACCEPT FOUR HOURS LEAVE WITHOUT PAY
IN ORDER TO DO SO. BOECK RETURNED TO WORK LATER THAT EVENING (MAY 2,
1978), AND MADE UP THE FOUR HOURS LEAVE WITHOUT PAY BY WORKING FROM 5:00
P.M. TO 9:00 P.M. SHE ALSO RECEIVED TEN PERCENT ADDITIONAL NIGHT
DIFFERENTIAL PAY FOR THREE HOURS WORK THAT EVENING FROM 6:00P.M. TO 9:00
P.M. AFTER TUREK TESTIFIED, HE COMPLETED HIS SHIFT AND WENT HOME AT
4:00 P.M. RESPONDENT DID NOT NOTIFY COMPLAINANT OF THE CHANGE IN THE
THREE EMPLOYEES' HOURS OF DUTY. COMPLAINANT LEARNED OF THE CHANGE AFTER
THE FEAA HEARING WAS COMPLETED.

FINDINGS AND CONCLUSIONS

THE FINDING IS THE RESPONDENT'S FAILURE TO GIVE COMPLAINANT ADVANCE
NOTICE OF ITS INTENT TO CHANGE THE THREE BARGAINING UNIT EMPLOYEES'
HOURS OF DUTY FOR THE DAY OF THE FEAA HEARING, AND AN OPPORTUNITY TO
MEET AND CONFER WITH RESPECT TO THE IMPACT AND IMPLEMENTATION OF THE
CHANGE VIOLATES SECTION 19(A)(1) AND (6) OF THE ORDER. IT IS CLEAR THAT
THE SHIFT CHANGE WAS MADE IN ORDER TO ASSURE COMPLIANCE WITH 5 C.F.R.
772.307(C)(2), AND HENCE, THE BASIC DECISION TO MAKE THE SHIFT CHANGE
WAS NONNEGOTIABLE. HOWEVER, IT IS EQUALLY CLEAR THAT EVEN WHEN AN
ACTIVITY IS PRIVILEGED TO TAKE SUCH AN ACTION WITHOUT FIRST BARGAINING
ABOUT THE BASIC DECISION, IT IS OBLIGATED TO NOTIFY AND BARGAIN, UPON
REQUEST, WITH THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES CONCERNING
THE PROCEDURE FOR IMPLEMENTING THE DECISION AND THE IMPACT OF THE
DECISION ON THE EMPLOYEES. /2/ THE AUTHORITY CAN NOT ACCEPT THE
RESPONDENT'S ARGUMENTS THAT ITS ACTION WAS NOT A MATTER AFFECTING
WORKING CONDITIONS UNDER SECTION 11(A) OF THE ORDER BECAUSE THE CHANGE
WAS INSUBSTANTIAL AND DID NOT EFFECT A CHANGE IN WORKING CONDITIONS, OR
THAT, IN ANY EVENT, ANY VIOLATION OF THE ORDER WHICH MAY HAVE OCCURRED
WAS DE MINIMIS. IN THIS REGARD, THE AUTHORITY FINDS THE CHANGE WAS
SIGNIFICANT IN ITS EFFECT ON THE WORKING CONDITIONS OF BARGAINING UNIT
EMPLOYEES, NOTING PARTICULARLY THE FACT THAT THESE EMPLOYEES WERE
COMPELLED TO WORK TWO CONSECUTIVE SHIFTS WITH ONLY A BRIEF INTERLUDE FOR
REST.

ACCORDINGLY, THE AUTHORITY FINDS THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER BY FAILING TO NOTIFY THE COMPLAINANT OF
ITS INTENT TO CHANGE THE WORKING HOURS OF UNIT EMPLOYEES AND AFFORD THE
COMPLAINANT THE OPPORTUNITY TO MEET AND CONFER, UPON REQUEST, WITH
RESPECT TO THE IMPACT AND IMPLEMENTATION OF THE CHANGE. /3/

ORDER

PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE INTERNAL REVENUE SERVICE, AUSTIN SERVICE CENTER SHALL:

1. CEASE AND DESIST FROM:

(A) CHANGING THE HOURS OF DUTY OF EMPLOYEES WITHOUT FIRST NOTIFYING
THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 72, THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES, AND AFFORDING SUCH REPRESENTATIVE THE
OPPORTUNITY TO MEET AND CONFER TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS ON THE IMPACT AND IMPLEMENTATION OF THE DECISION TO
EFFECTUATE SUCH CHANGES.

(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.

2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:

(A) NOTIFY THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 72
OF ANY INTENDED DECISION TO CHANGE THE HOURS OF DUTY OF EMPLOYEES AND
UPON REQUEST, MEET AND CONFER TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS ON THE IMPACT AND IMPLEMENTATION OF SUCH DECISION.

(B) POST AT ITS AUSTIN SERVICE CENTER, IN AUSTIN, TEXAS, COPIES OF
THE ATTACHED NOTICE MARKED "APPENDIX" 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 AUSTIN SERVICE CENTER AND SHALL
BE POSTED AND MAINTAINED BY THE DIRECTOR OF THE AUSTIN SERVICE CENTER IN
AUSTIN, TEXAS, FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.

(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.

ISSUED, WASHINGTON, D.C., FEBRUARY 29, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

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

WE HEREBY NOTIFY EMPLOYEES OF THE AUSTIN SERVICE CENTER IN AUSTIN,
TEXAS, THAT:

WE WILL NOT CHANGE TOURS OF DUTY OF EMPLOYEES WITHOUT FIRST NOTIFYING
THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 72, THE EXCLUSIVE
REPRESENTATIVE OF OUR EMPLOYEES, AND AFFORDING SUCH REPRESENTATIVE THE
OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE IMPACT AND IMPLEMENTATION OF THE DECISION TO
EFFECTUATE SUCH A POLICY.

WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.

WE WILL NOTIFY THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER
72 OF ANY INTENDED DECISION TO CHANGE THE HOURS OF DUTY OF EMPLOYEES
AND, UPON REQUEST, MEET AND CONFER TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE IMPACT AND IMPLEMENTATION OF SUCH DECISION.

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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: DOWNTOWN POST OFFICE STATION, BRYAN AND ERVAY STREETS, P.O.
BOX 2640, DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS: (214)
767-4996.

/1/ IN PERTINENT PART, 5 C.F.R. 702.307 PROVIDES:

(2) BOTH PARTIES ARE ENTITLED TO PRODUCE WITNESSES AND TO INTRODUCE
SIGNED SWORN STATEMENTS

OR LETTERS OF INTERROGATORY. THE APPEALS AUTHORITY IS NOT AUTHORIZED
TO SUBPOENA

WITNESSES. ANY AGENCY THAT HAS EMPLOYEES ENTITLED TO APPEAL TO THE
THE APPEAL AUTHORITY UNDER

THIS PART SHALL MAKE ITS EMPLOYEES AVAILABLE TO FURNISH SWORN
STATEMENTS OR TO APPEAR AS

WITNESSES AT THE HEARING WHEN REQUESTED BY THE APPEALS AUTHORITY
AFTER CONSIDERATION OF A

REQUEST BY EITHER PARTY TO THE APPEAL, UNLESS IT IS ADMINISTRATIVELY
IMPRACTICABLE TO COMPLY

WITH THE REQUEST OF THE APPEALS AUTHORITY. . . .

FEDERAL EMPLOYEES SHALL BE IN AN OFFICIAL DUTY STATUS FOR ALL
PURPOSES IN CONNECTION WITH

THEIR PROVISION OF SWORN STATEMENT OR THEIR APPEARANCE AS WITNESSES
AND SHALL BE FREE FROM

RESTRAINT, INTERFERENCE, COERCION, DISCRIMINATION, OR REPRISAL IN
PRESENTING THEIR TESTIMONY.

/2/ FEDERAL RAILROAD ADMINISTRATION, 4 A/SLMR 497, A/SLMR NO. 418
(1974).

/3/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.