National Treasury Employees Union v. Federal Labor Relations Authority
| Decision Date | 18 August 1987 |
| Docket Number | 85-1681 and 85-1635,Nos. 85-1597,s. 85-1597 |
| Citation | 826 F.2d 114 |
| Parties | 126 L.R.R.M. (BNA) 2157, 264 U.S.App.D.C. 42 NATIONAL TREASURY EMPLOYEES UNION, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. OVERSEAS EDUCATION ASSOCIATION (a unified State affiliate of the National Education Association), Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Gregory O'Duden, Washington, D.C., for petitioner Nat. Treasury Employees Union ("NTEU"). Lois G. Williams and Joseph V. Kaplan, Washington, D.C., were on the brief, for petitioner NTEU.
Richard J. Hirn, Washington, D.C., for petitioner Overseas Educ. Ass'n.
Steven H. Svartz, Deputy Sol., Federal Labor Relations Authority ("FLRA"), with whom Ruth E. Peters, Sol., FLRA, Washington, D.C., was on the brief, for respondent. Robert J. Englehart, Atty., FLRA, Washington, D.C., was also on the brief, for respondent in Nos. 85-1597, 85-1681.
Before BORK and BUCKLEY, Circuit Judges, and HAROLD H. GREENE, * U.S. District Judge for the District of Columbia.
Opinion for the court filed by Circuit Judge BUCKLEY.
Two federal employee unions, the National Treasury Employees Union ("NTEU") and the Overseas Education Association ("OEA"), petition for review of three decisions of the Federal Labor Relations Authority ("FLRA" or "Authority"). In each case, a federal agency's managers distributed questionnaires requesting information and opinions concerning conditions of employment directly to agency employees without the approval or involvement of their union.
Petitioners allege that these independent solicitations constituted unfair labor practices under the Federal Service Labor-Management Relations Act in that they undermined petitioners' positions as exclusive collective bargaining agents for the employees they represented. The FLRA found, on the facts, that the distributions had not violated the Act because in each case the requested information was required for the effective and efficient conduct of the agencies' operations and because the solicitations did not represent an attempt by management to bypass the union's authority as the employees' exclusive bargaining agents.
In the first two cases we must decide whether the Act prohibits management from soliciting information concerning conditions of employment directly from employees without the approval or participation of their union. We find no such prohibition. We must also decide, in all three cases, whether the FLRA's determination was reasonable and consistent with the policies underlying the Act. In each instance, we find that there is ample factual evidence as well as legal authority to support the FLRA's decision.
The Federal Service Labor-Management Act ("Act"), 5 U.S.C. Secs. 7101-7135 (1982), defines the rights of federal civil service employees and governs their relations with their employers.
In the preamble, Congress sets forth two principal findings:
[T]he statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them ... contributes to the effective conduct of public business,
and
[T]he public interest demands ... the continued development and implementation of modern and progressive work practices to facilitate and improve employee performance and the efficient accomplishment of the operations of the Government.
Section 7101(a).
The preamble also declares:
It is the purpose of [the Act] to prescribe certain rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government. The provisions of [the Act] should be interpreted in a manner consistent with the requirement of an effective and efficient Government.
Section 7101(b).
The Act enumerates certain entitlements of labor organizations representing federal employees, including one on which petitioners principally rely:
A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit.
Section 7114(a)(1).
In order to protect the right of employees and the unions representing them, the Act identifies a number of activities that, if engaged in by an agency, constitute unfair labor practices. Petitioners in each of the cases before us allege that their agencies engaged in the following activities forbidden by the Act:
(1) ... interfer[ing] with, restrain[ing], or coerc[ing] any employee in the exercise by the employee of any right under this chapter;
* * *
* * *
(5) ... refus[ing] to consult or negotiate in good faith with a labor organization as required by this chapter;
* * *
* * *
Sections 7116(a)(1) and (5).
The Act grants the FLRA authority to adjudicate unfair labor practice complaints, section 7105(a)(2)(G), as part of its general authority to "provide leadership in establishing policies and guidance relating to matters under [the Act]." Section 7105(a)(1).
Petitioner NTEU alleges that the Internal Revenue ("IRS") and Customs Services have violated the union's statutory rights as exclusive collective bargaining representative for employees in certain of their units by (1), in the case of IRS, distributing questionnaires directly to its employees over the objection of NTEU; and (2), in the case of Customs Service, distributing questionnaires directly to its employees without prior notice to NTEU. In each instance, the questionnaires solicited employee opinions concerning aspects of their conditions of employment.
In the first case, the administrative law judge ("ALJ") made extensive factual findings which the Authority subsequently adopted. We cite them at some length because of their significance in determining whether management overstepped the limits of its authority.
By letter dated May 15, 1980, IRS notified NTEU that IRS was about to conduct a survey of its Appeals Organization, and further that IRS would utilize, among other procedures, interviews and questionnaires to accomplish its survey. By letter dated May 23, 1980, IRS forwarded to NTEU copies of questionnaires which were to be distributed to Senior Auditors and Appeals Auditors. One questionnaire asks, among other questions, for the employees' "general reaction" to the possible use of programmable calculators, micro computers, NCR Terminals, etc. and for an estimate of the amount of training that would be required in order to utilize the equipment. The questionnaire also asks the employee to "indicate any career ladder opportunities in which you are interested." Another attached questionnaire asks the Appeals Auditors to indicate how significant certain listed skills, knowledge and abilities are to the successful performance of the job. There were a number of questions inquiring as to the Auditors' judgments as to the value of certain past experience (e.g. prior IRS experience) in performing their job as well as how important for success were training courses.
Internal Revenue Service (District, Region, National Office Units) and National Treasury Employees Union, 19 F.L.R.A. 353, 357 (1985). Shortly after NTEU received copies of the questionnaires, it wrote IRS asking for copies of all data produced by the Appeals Organization survey. In addition, a spokesman for NTEU informed the IRS:
[W]e believe you must limit your choice of employees for desk audit to those chosen by NTEU. Consequently, please contact the local NTEU president in each office who will give you a list of people we will make available for interviews. Naturally, since the desk audits will also be formal meetings, we expect that local union representatives will be invited to attend.
Id. at 357-58. IRS replied that it would not provide the requested data Id. at 358. Shortly thereafter, IRS advised NTEU, with respect to a similar case, that the union could not participate in the employee interviews as these would be "simply an information gathering mechanism." Id.
Four months later, IRS sent NTEU copies of questionnaires it intended to distribute to another group of employees in its Appeals Organization. The new group consisted of Appeals Officers, Appeals Clerks/Appeals Aids, and Record Clerks. The questions directed to the Appeals Officers included the following:
Id. at 358-59. The Record Clerks and Appeals Clerks/Appeals Aids were asked "if their training had been adequate and if they had any suggestions for improving their jobs." Id. at 359. NTEU responded immediately, urging IRS
not to implement [the survey] because of the improper nature of several questions. Those questions which seek the opinion of unit employees about working conditions In addition, [we] invoke our right to negotiate over any...
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