Internal Revenue Service, Los Angeles District and National Treasury Employees Union (Authority decision, December 13, 1982)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving an unfair labor practice complaint under 5 U.S.C. § 7116. 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

Four IRS field agents had long used earlier starting and quitting times with supervisory approval. The Los Angeles District changed their headquarters office hours to 8:00 a.m. to 4:30 p.m. without meeting with NTEU about the decision. The Authority found that the change concerned a negotiable condition of employment and that the district violated its duty to bargain. It ordered restoration of the prior hours, bargaining over proposed changes, and a posted notice.

Decision snapshot

• Authority: 5 U.S.C. § 7106(b)(1).
• Outcome: Unfair labor practice found; former hours restored and bargaining ordered.
• Key point: Changing established start and end times required bargaining with the employees’ union.

Full text (FLRA public release)

[ v10 p653 ]

10:0653(107)CA

The decision of the Authority follows:

10 FLRA No. 107

INTERNAL REVENUE SERVICE
LOS ANGELES DISTRICT
Respondent

and

NATIONAL TREASURY EMPLOYEES UNION
Charging Party

Case No. 8-CA-864

DECISION AND ORDER

This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations.

Upon consideration of the entire record in this case, including the parties' stipulation of facts, accompanying exhibits, and briefs submitted by the Respondent and the General Counsel, /1/ the Authority finds:

The complaint herein alleges, in substance, that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) /2/ when it unilaterally changed the starting and quitting times of four field agents in its Employee Plans/Exempt Organization (EP/EO) Division, without providing the employees' exclusive representative an opportunity to negotiate concerning the change.

The Charging Party, National Treasury Employees Union (NTEU), exclusively represents certain employees of the Internal Revenue Service, Los Angeles District (the Respondent). On may 21, 1979, the Respondent issued a memorandum updating the official hours of duty in headquarters and outlying posts of duty within the Los Angeles District. The memorandum stated that the official hours of duty in headquarters were 8:00 a.m. to 4:30 p.m. (4:45 in outlying areas), and also provided that supervisors could approve requests for deviations from official starting and quitting times with the concurrence of the Division Chief. The complaint concerns four field agents employed in the Respondent's EO section of the EP/EO Division who had for varying periods of time (three and a half years, one and a half years, sixteen and ten months, respectively) deviated from the official hours of duty on those days when they worked in the headquarters office. The agents in question worked hours of either 7:00 a.m. to 3:30 p.m. or 7:30 a.m. to 4:00 p.m. All had been doing so with either the express permission or knowledge of their respective supervisors. In addition, during the period from early 1978 through mid 1980, three other field agents in the EP/EO Division had been given express permission by either a supervisor in the Division or the former Chief of the EP/EO Division to work hours other than those established as the official hours of duty on those days when they worked in the office.

By memorandum dated October 10, 1980, the Respondent's Chief of the EP/EO Division informed NTEU's steward that he intended to change the tours of duty of the four field agents to 8:00 a.m. to 4:30 p.m. effective November 2, 1980. Thereafter, NTEU requested bargaining concerning the substance, impact and implementation of the Respondent's proposed change in duty hours and submitted a number of proposals. The position taken by the Respondent with respect to NTEU's proposals was that the substance of the change was not negotiable. On December 19, 1980, the Respondent sent each of the four field agents a memo stating that a change in starting and quitting times would be implemented on January 5, 1981. Since January 5, 1981, the four agents have worked the hours of 8:00 a.m. to 4:30 p.m. on those days when they worked in the headquarters office. The parties never met to discuss the Respondent's proposed change in the employees'work hours and never reached agreement with respect thereto.

In U.S. Customs Service, Region V, New Orleans, Louisiana, 9 FLRA No. 15 (1982), the Authority found, in pertinent part, that the activity violated section 7116(a)(1) and (5) of the Statute by not affording its employees' exclusive representative the opportunity to negotiate fully on the decision to change the starting and quitting times of a previously existing shift. In so finding, the Authority, citing National Treasury Employees Union, Chapter 66 and Internal Revenue Service, Kansas City Service Center, 1 FLRA 926 (1979), noted that a decision to change the starting and quitting times of employees on an established shift is a condition of employment and that the record, as here, failed to establish that the effectuated change was determinative of the numbers, types or grades of employees or positions assigned to a work project or tour of duty, so as to render the matter negotiable only at the election of the agency under section 7106(b)(1) of the Statute.
/3/ Thus, and for the reasons set forth in U.S. Customs Service, the Respondents position-- i.e., that the substance of its decision to change the starting and quitting times of the four employees herein is not within its duty to bargain-- cannot be sustained. Accordingly, the Authority finds that the Respondent violated section 7116(a)(1) and (5) of the Statute by changing the starting and quitting times for the field employees in question herein in its EP/EO Division without affording NTEU the opportunity to negotiate on the decision to do so.

The General Counsel has requested, as a remedy, that the Authority order a return to the status quo ante. Noting particularly that the Respondent failed to meet its duty to bargain under the Statute with NTEU concerning the decision to change starting and quitting times, the Authority finds that an order directing reestablishment of the previous starting and quitting times for the four employees is necessary to effectuate the purposes and policies of the Statute. See U.S. Customs Service, Region V, New Orleans, Louisiana, supra. /4/

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Authority hereby orders that the Internal Revenue Service, Los Angeles District, shall:

1. Cease and desist from:

(a) Instituting any change in the starting and quitting times of employees without affording the National Treasury Employees Union, the exclusive bargaining representative of its employees, the opportunity to negotiate with respect to any proposed changes thereto.

(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) Reestablish the previous starting and quitting times for the four employees in question and afford the National Treasury Employees Union the opportunity to negotiate with respect to any proposed changes thereto.

(b) Post at its facilities in the Los Angeles District 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 or his designee 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 Federal Labor Relations Authority's Rules and Regulations, notify the Regional Director, Region VIII, Federal Labor Relations Authority, 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071, 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., December 13, 1982

Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, 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 institute any change in the starting and quitting times of employees without affording the National Treasury Employees Union, the exclusive bargaining representative of our employees, the opportunity to negotiate with respect to any proposed changes thereto.

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 reestablish the previous starting and quitting times for the four employees in question, and, upon request, afford the National Treasury Employees Union the opportunity to negotiate with respect to any proposed changes thereto. (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 VIII, Federal Labor Relations Authority, whose address is: 350 Figueroa Street, 10th Floor, Los Angeles, California 90071, and whose telephone number is: (213) 688-3805.

--------------- FOOTNOTES$ ---------------

/1/ The Respondent moved to strike the General Counsel's brief on the grounds that the General Counsel cited various recommended decisions by Administrative Law Judges, which allegedly constitutes the use of "secret law." Inasmuch as the Authority, in reaching its decision in this or any case, does not consider recommendations of any Judge in other than the case before it, and as such recommended decisions have no precedential value, the motion to strike the General Counsel's brief is denied.

/2/ Section 7116(a)(1) and (5) provides:

Sec. 7116. Unfair labor practices

(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency--

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

. . . .

(5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.)

/3/ Section 7106(b)(1) provides:

(b) Nothing in this section shall preclude any agency and any labor organization from negotiating--

(1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work(.)

/4/ See also Federal Correctional Institution, 8 FLRA No. 111 (1982).