[ v10 p182 ]
10:0182(37)CA
The decision of the Authority follows:
10 FLRA No. 37
INTERNAL REVENUE SERVICE
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-900
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN
THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING
THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY. THEREAFTER, THE
CHARGING PARTY (NTEU) FILED EXCEPTIONS TO THE JUDGE'S DECISION. /1/
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,
ONLY TO THE EXTENT CONSISTENT HEREWITH.
THE COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1)
AND (5) OF THE STATUTE BY REFUSING TO BARGAIN WITH NTEU CONCERNING THE
IMPACT AND IMPLEMENTATION OF A NATIONWIDE COLLECTION QUALITY REVIEW
SYSTEM (CQRS). PRIOR TO IMPLEMENTATION OF THE NATIONWIDE CQRS, THE
RESPONDENT DECIDED TO "PILOT" THE PROGRAM IN 7 OF ITS APPROXIMATELY 58
DISTRICTS AND NOTIFIED NTEU OF ITS INTENTIONS. THE PARTIES MET AND
NEGOTIATED A MEMORANDUM OF UNDERSTANDING BEFORE THE PILOT PROGRAM WAS
IMPLEMENTED. UPON COMPLETION OF THE PILOT PROGRAM, THE RESPONDENT
NOTIFIED NTEU OF ITS INTENTION TO IMPLEMENT THE CQRS NATIONWIDE AND
PROVIDED NTEU WITH A PROPOSED MEMORANDUM OF UNDERSTANDING AS WELL AS
RELATED DOCUMENTS COVERING THE NATIONWIDE IMPLEMENTATION. THE
RESPONDENT'S DOCUMENTS CONTAINED NUMEROUS CHANGES TO THE PILOT PROGRAM
WHICH WERE DESIGNATED TO ELIMINATE THE "BUGS" FROM THE CQRS BEFORE IT
WAS IMPLEMENTED NATIONWIDE. NTEU REQUESTED NEGOTIATIONS AND SUBMITTED
SPECIFIC PROPOSALS. THE RESPONDENT TOOK THE POSITION THAT THE EARLIER
MEMORANDUM OF UNDERSTANDING ENCOMPASSED THE NATIONWIDE IMPLEMENTATION
OF
THE CQRS AS WELL AS THE PILOT PROGRAM, AND THAT NTEU WAS LIMITED TO
BARGAINING OVER REVISIONS MADE BY IRS IN THE PILOT PROGRAM AND ONE AREA
WHICH HAD BEEN EXPLICITLY RESERVED FOR FUTURE NEGOTIATIONS DURING THE
COURSE OF THE BARGAINING WHICH LED TO THE EARLIER MEMORANDUM OF
UNDERSTANDING. THE RESPONDENT REJECTED NTEU'S PROPOSALS AS NOT FALLING
UNDER EITHER OF THESE TWO CATEGORIES.
THE JUDGE FOUND THAT, DURING THE NEGOTIATIONS LEADING TO THE
MEMORANDUM OF UNDERSTANDING, THE RESPONDENT HAD INFORMED NTEU THAT IT
INTENDED THE NEGOTIATIONS TO COVER THE NATIONWIDE PROGRAM AS WELL AS THE
PILOT PROGRAM WHEREIN THE "BUGS" WOULD BE WORKED OUT OF THE SYSTEM. THE
JUDGE DID NOT FIND, NOR DOES THE RECORD REVEAL, WHAT, IF ANY, RESPONSE
NTEU MADE TO THIS EXPRESSION OF INTENT.
THE JUDGE FURTHER FOUND THAT, INASMUCH AS THE NATIONWIDE PROGRAM HAD
BEEN INCLUDED WITHIN THE SCOPE OF THE MEMORANDUM OF UNDERSTANDING, THE
RESPONDENT WAS OBLIGATED TO NEGOTIATE WITH NTEU ONLY WITH RESPECT TO THE
IMPACT AND IMPLEMENTATION OF THE RESPONDENT'S PROPOSED CHANGES TO THE
CQRS FOLLOWING THE PILOT PROGRAM, AND THAT INASMUCH AS NTEU'S PROPOSALS
DID NOT ADDRESS SUCH PROPOSED CHANGES THE RESPONDENT DID NOT VIOLATE
SECTION 7116(A)(1) AND (5) OF THE STATUTE WHEN IT REFUSED TO NEGOTIATE
OVER NTEU'S PROPOSALS.
IN THE PARTICULAR CIRCUMSTANCES OF THIS CASE, THE AUTHORITY CONCLUDES
THAT THE RESPONDENT FAILED AND REFUSED TO BARGAIN WITH NTEU IN GOOD
FAITH AND THEREBY VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE.
THUS, THE AGREEMENT NEGOTIATED BY THE PARTIES PRIOR TO IMPLEMENTATION OF
THE PILOT PROGRAM CONTEMPLATED THAT CHANGES UNKNOWN AT THE TIME WOULD
BE
MADE TO THE CQRS BASED UPON EXPERIENCE GAINED DURING THE PILOT PROGRAM.
THE RESPONDENT THEREAFTER PROPOSED CERTAIN SPECIFIC CHANGES AND
SUBMITTED A PROPOSED MEMORANDUM OF AGREEMENT AND A MANUAL SUPPLEMENT
TO
NTEU CONCERNING THE NATIONWIDE IMPLEMENTATION OF THE CQRS. WHILE THE
AUTHORITY ADOPTS THE JUDGE'S FINDING, BASED ON HIS CREDIBILITY
DETERMINATION, THAT THE RESPONDENT INFORMED NTEU THAT IT VIEWED THE
NEGOTIATIONS AND ANY AGREEMENT RESULTING THEREFROM AS APPLYING TO THE
NATIONWIDE CQRS RATHER THAN JUST TO THE PILOT PROGRAM, THE AUTHORITY
FURTHER FINDS THAT SUCH AGREEMENT CONCERNING THE CQRS CONTAINED NO
WAIVER WITH RESPECT TO FUTURE BARGAINING BY NTEU, AND THAT NTEU DID NOT
OTHERWISE CLEARLY AND UNMISTAKABLY WAIVE ITS RIGHT TO NEGOTIATE
CONCERNING THE IMPACT AND IMPLEMENTATION OF THE NATIONWIDE PROGRAM.
ACCORDINGLY, THE AUTHORITY FINDS THAT NTEU HAD THE STATUTORY RIGHT TO
NEGOTIATE REGARDING THE FINAL PLAN FOR THE NATIONWIDE CQRS UPON
COMPLETION OF THE PILOT PROGRAM. THAT IS, ABSENT A CLEAR AND
UNMISTAKABLE WAIVER BY NTEU, THE AUTHORITY CONCLUDES THAT NTEU HAD THE
RIGHT TO PROPOSE CHANGES IN PROCEDURES AND APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES WHO WOULD BE ADVERSELY AFFECTED BY THE NEW SYSTEM BASED UPON
ITS OWN EXPERIENCE IN DEALING WITH THE CQRS DURING THE PILOT PROGRAM,
AND THAT IT WOULD BE INCONSISTENT WITH THE PURPOSES AND POLICIES OF THE
STATUTE TO LIMIT THE RESPONDENT'S BARGAINING OBLIGATION STRICTLY TO THE
PROPOSED CHANGES IN THE CQRS INITIATED BY MANAGEMENT. SEE LIBRARY OF
CONGRESS, 9 FLRA NO. 51(1982). SEE ALSO LIBRARY OF CONGRESS, 9 FLRA NO.
52(1982).
HOWEVER, CONTRARY TO THE POSITION OF NTEU, THE AUTHORITY FINDS THAT A
STATUS QUO ANTE REMEDY IS NOT WARRANTED. THUS, BALANCING THE NATURE AND
CIRCUMSTANCES OF THE VIOLATION AGAINST THE DEGREE OF DISRUPTION IN
GOVERNMENT OPERATIONS THAT WOULD BE CAUSED BY SUCH A REMEDY, AND TAKING
INTO CONSIDERATION THE VARIOUS FACTORS SET FORTH IN FEDERAL CORRECTIONAL
INSTITUTION, 8 FLRA NO. 111(1982), THE AUTHORITY CONCLUDES THAT AN ORDER
REQUIRING THE RESPONDENT TO BARGAIN UPON REQUEST ABOUT IMPACT AND
IMPLEMENTATION WILL BEST EFFECTUATE THE PURPOSES AND POLICIES OF THE
STATUTE. IN THIS REGARD, THE AUTHORITY NOTES THAT THE RESPONDENT HAD
BARGAINED IN GOOD FAITH PRIOR TO THE IMPLEMENTATION OF THE PILOT PROGRAM
AND THAT ITS LATER REFUSAL TO BARGAIN EXCEPT WITH RESPECT TO PROPOSALS
RELATING TO MANAGEMENT'S MODIFICATIONS WAS FOUND ON AN ARGUABLE BUT
MISTAKEN BELIEF THAT ITS OBLIGATION IN THAT RESPECT WAS SO LIMITED.
MOREOVER, THE AUTHORITY NOTES THAT, GIVEN THE NATIONWIDE CHARACTER OF
THE CQRS, A REQUIREMENT TO RETURN TO THE STATUS QUO ANTE WOULD CAUSE
SUBSTANTIAL DISRUPTION TO GOVERNMENT OPERATIONS. ACCORDINGLY, THE
AUTHORITY FINDS THAT A STATUS QUO ANTE REMEDY IS NOT WARRANTED.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
HEREBY ORDERED THAT THE INTERNAL REVENUE SERVICE SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO NEGOTIATE WITH THE NATIONAL TREASURY
EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES,
CONCERNING THE PROCEDURES TO BE UTILIZED IN THE IMPLEMENTATION OF THE
NATIONWIDE COLLECTION QUALITY REVIEW SYSTEM AND/OR APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED THEREBY.
(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
PURPOSE AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) UPON REQUEST OF THE NATIONAL TREASURY EMPLOYEES UNION, THE
EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, MEET AND NEGOTIATE CONCERNING
THE PROCEDURES TO BE UTILIZED IN, AND/OR APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES ADVERSELY AFFECTED BY, THE IMPLEMENTATION OF THE NATIONWIDE
COLLECTION QUALITY REVIEW SYSTEM.
(B) POST AT ITS FACILITIES AND INSTALLATIONS 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
COMMISSIONER, INTERNAL REVENUE SERVICE, 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. THE COMMISSIONER SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE REGIONAL DIRECTOR OF REGION III, 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., SEPTEMBER 30, 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 FAIL AND REFUSE TO NEGOTIATE WITH THE NATIONAL TREASURY
EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES,
CONCERNING THE PROCEDURES TO BE UTILIZED IN THE IMPLEMENTATION OF THE
NATIONWIDE COLLECTION QUALITY REVIEW SYSTEM AND/OR APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED THEREBY.
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, UPON REQUEST OF THE NATIONAL TREASURY EMPLOYEES UNION, THE
EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, MEET AND NEGOTIATE CONCERNING
THE PROCEDURES TO BE UTILIZED IN, AND/OR APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES ADVERSELY AFFECTED BY, THE IMPLEMENTATION OF THE NATIONWIDE
COLLECTION QUALITY REVIEW SYSTEM.
(AGENCY)
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 OF REGION III, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS
IS: 1111 18TH STREET, N.W., WASHINGTON, D.C. 20036, AND WHOSE
TELEPHONE NUMBER IS (202) 653-8507.
-------------------- ALJ$ DECISION FOLLOWS --------------------
RAMONA H. HALL, ESQUIRE
RICHARD J. MIHLECIC, ESQUIRE
FOR THE RESPONDENT
ERICK J. GENSER, ESQUIRE
FOR THE GENERAL COUNSEL
SEAN J. ROGERS, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL LABOR-MANAGEMENT RELATIONS
STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. 7101, ET SEQ.,
AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED. REG. VOL. 45, NO.
12, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV, PART 2411, ET SEQ.
PURSUANT TO A CHARGE FILED ON FEBRUARY 25, 1980, BY THE NATIONAL
TREASURY EMPLOYEES UNION, (HEREINAFTER CALLED THE NTEU OR UNION), A
COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON SEPTEMBER 26, 1980, BY THE
REGIONAL DIRECTOR FOR REGION III, FEDERAL LABOR RELATIONS AUTHORITY,
WASHINGTON, D.C. THE COMPLAINT ALLEGES THAT THE INTERNAL REVENUE
SERVICE, (HEREINAFTER CALLED THE RESPONDENT OR IRS), VIOLATED SECTIONS
7116(A)(1) AND (5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE, (HEREINAFTER CALLED THE STATUTE), BY VIRTUE OF ITS ACTIONS IN
REFUSING TO BARGAIN WITH THE UNION CONCERNING THE IMPACT AND
IMPLEMENTATION OF A SERVICEWIDE QUALITY REVIEW PROGRAM.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON NOVEMBER 13, 1980, IN
WASHINGTON, D.C. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN. ALL PARTIES SUBMITTED BRIEFS ON
DECEMBER 15, 1980, WHICH HAVE BEEN DULY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS.
FINDINGS OF FACT
THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF THE RESPONDENT'S
PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES LOCATED IN RESPONDENT'S
REGIONAL OFFICES, DISTRICT OFFICES AND NATIONAL OFFICE.
IN MID-JANUARY 1979, THE NTEU WAS INFORMED THAT THE IRS PLANNED TO
REDEFINE THE ROLE OF THE REVENUE OFFICER GROUP MANAGER WITHIN THE
COLLECTION DIVISION OF IRS. ALTHOUGH THE NTEU WAS NOT THE EXCLUSIVE
REPRESENTATIVE OF THE GROUP MANAGERS, THE NTEU WAS, HOWEVER, CONCERNED
ABOUT THE POSSIBLE IMPACT ON BARGAINING UNIT EMPLOYEES RESULTING FROM
THE REALIGNMENT OF THE GROUP MANAGER'S FUNCTIONS. ON JANUARY 18, 1979,
THE NTEU SENT A LETTER TO THE IRS WHEREIN IT EXPRESSED ITS CONCERNS OVER
THE PROPOSED CHANGES AND REQUESTED NEGOTIATIONS OVER THE IMPACT OF THE
CHANGES ON BARGAINING UNIT EMPLOYEES.
ON APRIL 12, 1979, IRS FORWARDED TO THE NTEU A COPY OF THE FINALIZED
DOCUMENT ENTITLED "ROLE OF THE REVENUE OFFICER GROUP MANAGER". IN THE
COVER LETTER ATTACHED TO THE DOCUMENT, IRS STATED THAT THE CHANGES IN
THE GROUP MANAGER'S ROLE WOULD BE IMPLEMENTED ON OCTOBER 12, 1979, IN
CONJUNCTION WITH A QUALITY COLLECTION REVIEW PROGRAM. THE CHANGES IN
BOTH THE ROLE OF THE GROUP MANAGER AND THE QUALITY COLLECTION REVIEW
PLAN WERE TO BE IMPLEMENTED "SERVICEWIDE" AFTER THEY HAD BEEN TESTED
OVER A PERIOD OF TIME IN SIX OR SEVEN SELECTED IRS DISTRICTS. THE
LETTER FURTHER STATED THAT "THE PURPOSE OF THE TESTS IS TO ANALYZE AND
REFINE THE MECHANICS OF THE QUALITY REVIEW FUNCTION".
ON APRIL 17, 1979, THE NTEU SENT A LETTER TO IRS WHEREIN IT NOTED,
AMONG OTHER THINGS, ITS CONCERNS ABOUT THE GROUP MANAGER BEING REMOVED
FROM THE PROCESS OF REVIEWING EMPLOYEES' WORK PRODUCTS AND INSTITUTING
IN PLACE THEREOF A SYSTEM WHEREBY EMPLOYEES' PEERS WOULD BE ASSIGNED
QUALITY REVIEW FUNCTIONS.
ON MAY 3, 1979, THE IRS SENT THE NTEU A COPY OF A DRAFT MANUAL
SUPPLEMENT WHICH SET FORTH PROCEDURES FOR IMPLEMENTING A NEW COLLECTION
QUALITY REVIEW SYSTEM IN SEVEN "PILOT" IRS DISTRICTS. THE "PILOT"
PROGRAM WAS TO COMMENCE ON JUNE 3, 1979, AND END NOVEMBER 1979. THE
DRAFT INDICATED THAT "A TASK FORCE" HAD RECOMMENDED "PILOTING" THE
PROGRAM PRIOR TO NATIONWIDE IMPLEMENTATION. THEREAFTER, NTEU RESPONDED
TO THE IRS'S MAY 3, 1979, TRANSMITTAL. THUS, ON MAY 22, 1979, NTEU SENT
A LETTER TO THE IRS WHEREIN IT OUTLINED THE AREAS IN THE DRAFT MANUAL
SUPPLEMENT OVER WHICH IT WISHED TO NEGOTIATE. THE NTEU POINTED OUT THAT
IT WAS ITS DESIRE TO INSURE THAT THE PROGRAM WOULD OPERATE UNIFORMLY IN
THE SELECTED DISTRICTS AND THAT ALL STANDARDS AND DEFINITIONS FOR REVIEW
APPRAISALS WOULD BE PROPERLY ADHERED TO IN ALL PILOT DISTRICTS.
ON JUNE 6, 1979, A MEETING WAS HELD BETWEEN VARIOUS REPRESENTATIVES
OF THE IRS AND NTEU. MR. WILLIAM PERSINA AND MR. RUSSELL BOWDEN
REPRESENTED THE NTEU, AND MR. BRUCE TOMASO AND MR. STEVEN ROCHE
REPRESENTED THE IRS. DURING THE COURSE OF THE MEETING THE PARTIES
DISCUSSED A SET OF PROPOSALS PRESENTED BY THE . NTEU. WHEN MR. TOMASO,
EXPRESSED CONCERN OVER THE NEGOTIABILITY OF ONE OF THE PROPOSALS DEALING
WITH THE DEFINITION OF "CRITICAL ERRORS" IN THE CLOSE CASE REVIEW
PROCESS, THE NTEU VOLUNTARILY WITHDREW THE "CRITICAL ERROR" PROPOSALS
FROM CONSIDERATION AFTER FIRST MAKING IT CLEAR THAT IT WAS NOT WAIVING
ITS RIGHT TO RESUBMIT THEM AT A LATER DATE.
ON JUNE 7, 1979, NTEU SENT A LETTER TO THE IRS CONCERNING THE
"PROPOSED TEST PLAN OF DISTRICT COLLECTION ACTIVITY QUALITY REVIEW
SYSTEM". THE LETTER CONFIRMED THE DISCUSSIONS OF THE DAY BEFORE AND
INDICATED WHICH PROPOSALS STILL REMAINED FOR CONSIDERATION. THE LETTER
MADE IT CLEAR THAT THE NTEU WAS NOT WAIVING ITS RIGHTS TO DEAL WITH THE
"CRITICAL ERRORS" PROPOSALS AT A FUTURE DATE.
THE PARTIES MET AGAIN ON JULY 13, 1979, AND FURTHER DISCUSSED THE
PROPOSED QUALITY REVIEW SYSTEM. AMONG THE POINTS OF CONTENTION WAS THE
USE AND RETENTION OF "FORM 6216", A CHECKSHEET USED IN REVIEWING
EMPLOYEES' CLOSED CASES. THE UNION WAS CONCERNED ABOUT THE USE OF "FORM
6216" AND THE PERIOD OF TIME IT WOULD BE HELD. THE PARTIES FAILED TO
REACH AGREEMENT WITH RESPECT TO THIS ISSUE AND THE OVERALL IMPACT AND
MANNER OF IMPLEMENTATION OF THE PROPOSED QUALITY REVIEW SYSTEM.
THEREAFTER, FOLLOWING ANOTHER MEETING BETWEEN THE PARTIES ON JUNE 20,
1979, THE EXCHANGE OF MEMORANDUMS OF UNDERSTANDING AUTHORED BY THE NTEU
AND THE IRS, RESPECTIVELY, AND A NUMBER OF TELEPHONE CONVERSATIONS
BETWEEN MR. BOWDEN AND MR. TOMASO, THE PARTIES EVENTUALLY SIGNED A
WRITTEN AGREEMENT ON JULY 6, 1979, PERTAINING TO THE IMPLEMENTATION OF
THE COLLECTION REVIEW SYSTEM. THE JULY 6, 1979, AGREEMENT SET FORTH NO
EXPIRATION DATE AND IS SILENT WITH RESPECT TO WHETHER OR NOT THE
AGREEMENT WOULD BE APPLICABLE TO ANY SUBSEQUENT NATIONWIDE
IMPLEMENTATION OF THE QUALITY REVIEW SYSTEM. ADDITIONALLY, THE
AGREEMENT CONTAINS NO GENERAL WAIVER WITH RESPECT TO FUTURE BARGAINING
BY THE UNION, BUT MAKES IT CLEAR THAT THE MATTER OF RETENTION OF COPIES
OF "FORM 6216" WILL BE NEGOTIATED FURTHER WHEN "THE TEST PERIOD FOR THE
QUALITY REVIEW PROGRAM IS COMPLETED AND THE TEST PERIOD RESULTS HAVE
BEEN EVALUATED".
THE AGREEMENT WAS THEN IMPLEMENTED IN THE SEVEN PILOT DISTRICTS.
ALTHOUGH THE PARTIES ARE IN AGREEMENT WITH RESPECT TO THE ABOVE
CHRONOLOGY AND SUMMARY OF THE FACTS, A DISPUTE EXISTS WITH RESPECT TO
THE NATURE AND/OR SCOPE OF THE JULY 6, 1979 AGREEMENT BETWEEN THE
PARTIES. ACCORDING TO MR. BOWDEN AND MR. PERSINA, IT WAS THEIR
UNDERSTANDING THAT THE PARTIES WERE ONLY NEGOTIATING AN AGREEMENT
APPLICABLE TO THE PILOT OR TEST PERIOD AND THAT THERE WOULD BE FURTHER
NEGOTIATIONS PRIOR TO IMPLEMENTATION OF THE QUALITY REVIEW SYSTEM ON A
NATIONWIDE SCALE. MR. ROCHE AND MR. TOMASO, ON THE OTHER HAND,
TESTIFIED THAT DURING THE NEGOTIATIONS LEADING UP TO THE FINAL
AGREEMENT, THEY BOTH MADE IT CLEAR THAT THE NEGOTIATIONS WERE FOR A
QUALITY REVIEW SYSTEM TO BE IMPLEMENTED NATIONWIDE.
ACCORDING TO MR. ROCHE, THE AUTHOR AND DESIGNER OF THE PROGRAM, HE
TOLD THE UNION REPRESENTATIVES AT THE FIRST MEETING, THE ONLY ONE HE
ATTENDED,
. . . WE WERE NEGOTIATING . . . A PROGRAM THAT WE WERE GOING
NATIONWIDE WITH, AND WE
SPECIFIED THAT WHILE WE WERE GOING NATIONWIDE WITH IT THE DECISION
HAD BEEN MADE TO GO
NATIONWIDE AND THIS (IS) WHAT WE WERE NEGOTIATING. WE WERE PLANNING
TO PILOT WHAT WE WERE
NEGOTIATING. WE WERE PLANNING TO PILOT THE COLLECTION QUALITY REVIEW
PROGRAM IN SEVEN
DISTRICTS TO WORK ANY BUGS OUT OF THE SYSTEM TO FACILITATE NATIONWIDE
IMPLEMENTATION. BUT WE
SPECIFIED WHAT WE WERE NEGOTIATING WAS THE ENTIRE PACKAGE, NATIONWIDE
IMPLEMENTATION.
FURTHER ACCORDING TO MR. ROCHE, HE INFORMED THE NTEU REPRESENTATIVES
OF THE DIFFERENCE BETWEEN A PILOT PROGRAM AND A TEST PROGRAM, NAMELY,
THAT A PILOT PROGRAM IS ONE THAT IS DEFINITELY GOING TO BE IMPLEMENTED
AFTER A TEST PERIOD, WHILE A TEST PROGRAM IS ONE WHICH MAY NEVER BE
IMPLEMENTED AFTER THE FINAL RESULTS ARE ANALYZED.
MR. TOMASO TESTIFIED THAT HE AND MR. ROCHE "MADE IT CLEAR" THAT THE
SCOPE OF THE PROGRAM THEY WERE NEGOTIATING WAS NATIONWIDE AND THAT THEY
TOLD THE NTEU THAT THEY "INTENDED TO DEAL WITH THIS ISSUE ONCE". WHEN
ASKED WHAT HE MEANT BY THE WORD "ISSUE", MR. TOMASO STATED AS FOLLOWS:
THE ISSUE OF THE QUALITY REVIEW PROGRAM; THAT WE DEAL WITH IT ONCE,
THAT WE EFFECT AN
AGREEMENT, AND MR. BOWDEN ASKED A SPECIFIC QUESTION, IS THIS PROGRAM
GOING TO
CHANGE. SUBSTANTIVELY NO, SIR, IT WILL NOT CHANGE. WHAT WILL CHANGE
IF ANYTHING WILL
CHANGE? INTERNAL MECHANICS. QUESTIONS LIKE SAMPLING SIZES. ARE WE
DEALING WITH THE PROPER
NUMBER OF CASES IN THE REVIEW MECHANIC ITSELF? THEY MAY CHANGE.
SUBSTANTIVELY THIS PROGRAM
WILL NOT CHANGE. WHAT YOU SEE IS WHAT YOU GET. . . . I MEANT BY
WHAT YOU SEE IS WHAT YOU GET
THAT THIS IS THE PROGRAM, IT WILL NOT CHANGE. THIS IS THE PROGRAM
THAT WILL BE PUT IN PLACE
FOR THE PURPOSE OF THE PILOT, THIS IS THE PROGRAM THAT WILL BE PUT
INTO PLACE FOR THE PURPOSE
OF NATIONWIDE IMPLEMENTATION. LET'S DEAL WITH IT AND DEAL WITH IT
NOW.
MR. PERSINA CAN NOT RECALL WHETHER THE IRS OFFICIALS MAY HAVE
INDICATED THAT THERE WOULD BE "NO REVISIONS IN THE PROGRAM AFTER THE
PILOT STUDY WAS COMPLETED". HE DID ACKNOWLEDGE, HOWEVER, THAT IRS
REPRESENTATIVES MAY HAVE SAID "SOMETHING ABOUT WE DON'T ANTICIPATE
CHANGES BUT WE ARE GOING TO RUN THIS PROGRAM AND SEE WHAT HAPPENS". MR.
PERSINA FURTHER TESTIFIED THAT IT WAS HIS UNDERSTANDING THAT THE TARGET
DATE FOR COMPLETING THE PILOT PROGRAM WAS JANUARY 1980, AND THAT
FOLLOWING EVALUATION OF THE PILOT PROGRAM, THERE WAS GOING TO BE A
PROPOSAL FOR THE IMPLEMENTATION OF THE QUALITY REVIEW PROGRAM
NATIONWIDE.
MR. BOWDEN DENIED THAT ANY IRS OFFICIAL HAD EVER INDICATED THAT THE
AGREEMENT THAT THEY WERE NEGOTIATING WOULD APPLY TO A NATIONWIDE QUALITY
REVIEW PROGRAM. ACCORDING TO BOWDEN, THE PARTIES WERE ONLY NEGOTIATING
FOR THE PILOT PROGRAM AND MR. TOMASO INDICATED THAT THERE WOULD BE
FURTHER NEGOTIATIONS AFTER STATISTICS HAD BEEN COMPILED FROM THE PILOT
PROGRAM.
ON DECEMBER 19, 1979, THE IRS FORWARDED A NUMBER OF DOCUMENTS TO THE
NTEU CONCERNING THE NATIONWIDE IMPLEMENTATION OF A COLLECTION QUALITY
REVIEW SYSTEM. THE DOCUMENTS INCLUDED A PROPOSED MEMORANDUM OF
AGREEMENT COVERING THE NATIONWIDE IMPLEMENTATION AND A MANUAL SUPPLEMENT
APPLICABLE TO THE NATIONWIDE IMPLEMENTATION OF THE QUALITY REVIEW
SYSTEM. THE MANUAL SUPPLEMENT WAS THE SAME SUPPLEMENT USED IN THE PILOT
PROGRAM WITH NUMEROUS CHANGES THERETO NOTED IN THE MARGINS. /2/
UPON RECEIPT OF THE ABOVE TRANSMITTAL, MR. FRANK FERRIS OF THE NTEU
CALLED THE IRS AND SET UP A MEETING TO DISCUSS THE DRAFT DOCUMENTS
PERTAINING TO THE NATIONWIDE IMPLEMENTATION OF THE QUALITY REVIEW
SYSTEM. THE PARTIES SUBSEQUENTLY MET ON JANUARY 8, 1980, AT WHICH TIME
MR. FERRIS SUBMITTED A NUMBER OF PROPOSALS. THE RESPONDENT REFUSED TO
NEGOTIATE MOST OF THE NTEU'S PROPOSALS ON THE GROUND THAT THEY DID NOT
PERTAIN TO THE CHANGES IN THE QUALITY REVIEW PROGRAM MADE BY IRS IN THE
MARGIN ON THE MANUAL SUPPLEMENT. IT WAS IRS'S POSITION THAT THE JULY 6,
1979, MEMORANDUM OF UNDERSTANDING BETWEEN THE PARTIES PRECLUDED ANY
FURTHER NEGOTIATIONS WITH RESPECT TO NATIONWIDE IMPLEMENTATION OF THE
MANUAL SUPPLEMENT, SAVE FOR THOSE PROVISIONS WHERE FUTURE BARGAINING WAS
RESERVED. THE PARTIES AGAIN MET ON JANUARY 11, 1980. AT THIS TIME THE
NTEU SUBMITTED A SCALED DOWN LIST OF PROPOSALS FOR NEGOTIATION. THE IRS
REMAINED STEADFAST IN ITS POSITION AND REFUSED TO BARGAIN OVER ANY OF
THE PROVISIONS OF THE MANUAL SUPPLEMENT WHICH HAD NOT BEEN AMENDED SINCE
THE START OF THE PILOT PROGRAM.
SUBSEQUENTLY, WITHOUT ANY FURTHER BARGAINING, THE IRS IMPLEMENTED THE
PROGRAM ON A NATIONWIDE BASIS ON OR ABOUT JANUARY 21, 1980.
DISCUSSION AND CONCLUSIONS
RESOLUTION OF THE INSTANT CASE TURNS SOLELY UPON THE SCOPE OF THE
JULY 6, 1979, AGREEMENT BETWEEN THE PARTIES. IF, AS CONTENDED BY THE
IRS, THE SCOPE WAS NATIONWIDE, THEN IRS WAS ONLY OBLIGATED TO BARGAIN
WITH THE NTEU OVER THE IMPACT AND IMPLEMENTATION OF ANY SUBSEQUENT
CHANGES MADE IN THE JULY 6, 1979 AGREEMENT. ON THE OTHER HAND, IF, AS
CONTENDED BY THE GENERAL COUNSEL, THE AGREEMENT WAS LIMITED TO ONLY THE
PILOT PROGRAM, THE IRS WAS OBLIGATED TO BARGAIN FROM SCRATCH WITH REGARD
TO THE IMPACT AND IMPLEMENTATION OF A NATIONWIDE QUALITY REVIEW PROGRAM.
IN SUPPORT OF ITS POSITION, THE IRS RELIES ON THE TESTIMONY OR MR.
ROCHE AND MR. TOMASO, THE FACT THAT THE MAY 3, 1979, MANUAL SUPPLEMENT
SPEAKS OF PILOTING PRIOR TO NATIONWIDE IMPLEMENTATION, AND THE FACT THAT
THERE WOULD HAVE BEEN NO REASON FOR THE NTEU TO RESERVE ON THE "FORM
6216" ISSUE IF FURTHER NEGOTIATIONS PRIOR TO NATIONWIDE IMPLEMENTATION
OF THE QUALITY REVIEW PROGRAM WERE CONTEMPLATED. THE GENERAL COUNSEL
RELIES ON THE TESTIMONY OF MR. PERSINA AND MR. BOWDEN AS WELL AS THE
INTRODUCTORY LANGUAGE OF THE MAY 3, 1979, MANUAL SUPPLEMENT WHICH SPEAKS
OF PROCEDURES FOR IMPLEMENTING THE PILOT PROGRAM IN THE PILOT DISTRICTS.
/3/
ON THE BASIS OF THE RECORD AS WHOLE, INCLUDING THE DEMEANOR OF THE
WITNESSES, I FIND THAT MR. ROCHE AND MR. TOMASO DID INFORM THE NTEU
REPRESENTATIVES THAT WHAT THEY WERE IN FACT NEGOTIATING WAS A NATIONWIDE
QUALITY REVIEW PROGRAM WHICH WOULD BE IMPLEMENTED FOLLOWING A PILOT
PERIOD WHEREIN THE "BUGS" WOULD BE WORKED OUT OF THE SYSTEM. I FURTHER
FIND THAT THE UNION WAS INFORMED THAT THE IRS CONTEMPLATED SOME CHANGES
IN THE MECHANICS OF THE PROGRAM AFTER THE RESULTS OF THE PILOT PERIOD
HAD BEEN EVALUATED.
FINALLY, CONTRARY TO THE TESTIMONY OF MR. BOWDEN AND MR. PERSINA, I
FIND THAT THE NTEU REPRESENTATIVES WERE AWARE OF THE SCOPE OF THE
NEGOTIATIONS, I.E. NATIONWIDE QUALITY REVIEW PROGRAM, PRIOR TO SIGNING
THE JULY 6, 1979 MEMORANDUM OF AGREEMENT. SUPPORT FOR THIS LATTER
CONCLUSION IS FOUND IN THE MEMORANDUM OF AGREEMENT. IF, AS CONTENDED BY
THE GENERAL COUNSEL, THE PARTIES WERE IN FACT ONLY NEGOTIATING A PILOT
PROGRAM WITH THE UNDERSTANDING THAT THERE WOULD BE NEW NEGOTIATIONS AT
THE TERMINATION OF THE PILOT PROGRAM AND PRIOR TO NATIONWIDE
IMPLEMENTATION OF THE QUALITY REVIEW PROGRAM, I FAIL TO SEE THE
NECESSITY FOR SINGLING OUT AND/OR PRESERVING ONLY THE FORM 6216 ISSUE
FOR FUTURE NEGOTIATIONS. THE ALLEGED RATIONALE FOR SUCH ACTION, FEAR OF
SETTING A PRECEDENT, IS EQUALLY APPLICABLE TO ALL THE TERMS OF THE
AGREEMENT WHICH ENCOMPASSES THE MANUAL SUPPLEMENT SETTING FORTH THE
ACTUAL PROCEDURES FOR THE OPERATION OF THE QUALITY REVIEW PROGRAM.
ADDITIONALLY, I FIND THAT THE DRAFT MANUAL SUPPLEMENT SUBMITTED TO THE
NTEU ON MAY 3, 1979, INDICATED THAT QUALITY REVIEW PROGRAM WAS TO HAVE
NATIONWIDE APPLICATION.
HAVING CONCLUDED THAT THE JULY 6, 1979, MEMORANDUM OF AGREEMENT
BETWEEN THE PARTIES WAS APPLICABLE TO THE NATIONWIDE IMPLEMENTATION OF
THE QUALITY REVIEW PROGRAM, I FIND THAT THE IRS WAS ONLY OBLIGATED TO
BARGAIN WITH THE NTEU OVER THE IMPACT AND IMPLEMENTATION OF ANY CHANGES
MADE IN THE JULY 6, 1979, MEMORANDUM OF AGREEMENT. INASMUCH AS THE NTEU
PROPOSALS SUBMITTED IN JANUARY OF 1980 DID NOT ADDRESS THE IRS'S
PROPOSED CHANGES, THE IRS DID NOT VIOLATE SECTIONS 7116(A)(1) AND (5) OF
THE STATUTE WHEN IT REFUSED TO BARGAIN THEREON. ACCORDINGLY, I SHALL
RECOMMEND THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-900 SHOULD
BE, AND HEREBY IS, DISMISSED IN ITS ENTIRETY.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 5, 1981
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ THE RESPONDENT (IRS) FILED AN OPPOSITION TO NTEU'S EXCEPTIONS
WHICH WAS UNTIMELY AND THEREFORE HAS NOT BEEN CONSIDERED.
/2/ THE NEW MANUAL SUPPLEMENT AMONG OTHER THINGS, CHANGED THE NUMBER
AND NATURE OF FIELD VISITATIONS BY MANAGERS, GAVE LOCAL MANAGERS MORE
DISCRETION TO DEFINE ERRORS IN THE REVIEW PROCESS, REVISED THE
RESPONSIBILITIES OF THE QUALITY REVIEWER, AND CHANGED THE SAMPLING
TECHNIQUES.
/3/ THE GENERAL COUNSEL EQUATES THE IRS'S POSITION TO ONE OF "WAIVER
OF RIGHTS" AND TAKES THE POSITION THAT INASMUCH AS THE ALLEGED "WAIVER"
IS NOT "CLEAR AND UNMISTAKABLE", IRS'S DEFENSE IN THIS REGARD MUST FAIL.
CONTRARY TO THE GENERAL COUNSEL, I DO NOT CONSTRUE THE IRS'S DEFENSE TO
BE ONE OF "WAIVER" AND, ADDITIONALLY, I FIND THAT, THE DISPOSITION OF
THE INSTANT UNFAIR LABOR PRACTICE COMPLAINT TURNS SOLELY ON THE SCOPE OF
THE JULY 6, 1979, AGREEMENT AND NOT THE PRINCIPLE OF "WAIVER".