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10:0326(61)CA
The decision of the Authority follows:
10 FLRA No. 61
INTERNAL REVENUE SERVICE
(DISTRICT, REGION AND NATIONAL
OFFICE UNIT AND SERVICE CENTER
UNIT)
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-1794
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN THE
UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT
IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS.
THEREAFTER, THE CHARGING PARTY AND THE RESPONDENT FILED EXCEPTIONS. /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, THE AUTHORITY HEREBY ADOPTS THE
JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
IN AGREEMENT WITH THE JUDGE, THE AUTHORITY FINDS THAT THE RESPONDENT
(IRS) DID NOT GIVE THE CHARGING PARTY (NTEU) ADEQUATE NOTICE OF ITS
DECISION TO TERMINATE THE ACCOUNTING TRAINING PROGRAM (ATP) FOR CERTAIN
BARGAINING UNIT EMPLOYEES REFERRED TO AS "CROSS-OVER" EMPLOYEES. /2/ AS
PREVIOUSLY NOTED BY THE AUTHORITY, THE STATUTE REQUIRES THAT, PRIOR TO
EFFECTUATING A CHANGE IN ESTABLISHED CONDITIONS OF EMPLOYMENT, AN AGENCY
MUST GIVE THE EXCLUSIVE REPRESENTATIVE NOTICE AND AN OPPORTUNITY TO
NEGOTIATE. SEE DEPARTMENT OF THE AIR FORCE, SCOTT AIR FORCE BASE,
ILLINOIS, 5 FLRA NO. 2 (1981). IN THE AUTHORITY'S VIEW, AND IN
AGREEMENT WITH THE JUDGE'S FINDINGS AND RATIONALE, THE NOTICE GIVEN TO
NTEU BY IRS WAS NOT SUFFICIENTLY SPECIFIC OR DEFINITIVE REGARDING THE
ACTUAL CHANGE CONTEMPLATED SO AS TO ADEQUATELY PROVIDE NTEU WITH A
REASONABLE OPPORTUNITY TO REQUEST BARGAINING. /3/ THUS, WHILE THE
AUTHORITY FINDS, IN FURTHER AGREEMENT WITH THE JUDGE, THAT THE DECISION
TO TERMINATE THE ATP FOR CROSS-OVER EMPLOYEES WAS NOT ITSELF NEGOTIABLE
SINCE IT INVOLVED THE EXERCISE OF MANAGEMENT'S RIGHT "TO ASSIGN WORK"
UNDER SECTION 7106(A)(2)(B) OF THE STATUTE, /4/ IRS NEVERTHELESS HAD THE
OBLIGATION PURSUANT TO SECTION 7106(B)(2) AND (3) OF THE STATUTE /5/ TO
AFFORD NTEU THE OPPORTUNITY TO REQUEST NEGOTIATIONS OVER THE PROCEDURES
TO BE OBSERVED IN IMPLEMENTING THE DECISION AND APPROPRIATE ARRANGEMENTS
FOR ADVERSELY AFFECTED EMPLOYEES. ACCORDINGLY, ITS FAILURE TO GIVE NTEU
ADEQUATE NOTICE SO AS TO PERMIT NTEU TO SUBMIT APPROPRIATE BARGAINING
PROPOSALS PRIOR TO IMPLEMENTATION OF THE CHANGE CONSTITUTED A VIOLATION
OF SECTION 7116(A)(1) AND (5) OF THE STATUTE.
MOREOVER, IN AGREEMENT WITH THE JUDGE, THE AUTHORITY CONCLUDES THAT A
STATUS QUO ANTE REMEDY IS WARRANTED. SUCH CONCLUSION IS BASED UPON A
CAREFUL BALANCING AND CONSIDERATION OF THE SPECIFIC FACTORS ENUMERATED
IN FEDERAL CORRECTIONAL INSTITUTION, 8 FLRA NO. 111 (1982). /6/
SPECIFICALLY, IN THIS CASE, IRS FAILED TO GIVE NTEU ADEQUATE NOTICE OF
THE PROPOSED CHANGE AND, AS A CONSEQUENCE OF THE CHANGE, EMPLOYEES IN
NTEU'S BARGAINING UNIT LOST A TRAINING OPPORTUNITY INTENDED TO QUALIFY
THEM FOR THE REVENUE AGENT SERIES. THUS, BARGAINING UNIT EMPLOYEES WERE
SIGNIFICANTLY IMPACTED BY IRS'S VIOLATION OF ITS BARGAINING OBLIGATION.
IN CONTRAST, THE AUTHORITY NOTES THAT THE ATP WAS RETAINED FOR MANDATORY
EMPLOYEES (I.E., THOSE EMPLOYEES FOR WHOM ADDITIONAL CREDITS ARE
MANDATORY TO REACH A JOURNEYMAN LEVEL IN THEIR CAREER FIELD) AS WELL AS
FOR CERTAIN CROSS-OVER EMPLOYEES WHO WERE "GRANDFATHERED" INTO THE
PROGRAM. THUS, THE RECORD DOES NOT INDICATE THAT INCLUSION OF THE OTHER
CROSS-OVER EMPLOYEES IN THE ONGOING PROGRAM PENDING APPROPRIATE
NEGOTIATIONS WOULD SIGNIFICANTLY DISRUPT IRS'S OPERATIONS. ACCORDINGLY,
WEIGHING THE IMPACT OF THE CHANGE ON UNIT EMPLOYEES AGAINST THE
APPARENTLY MINIMAL DEGREE OF DISRUPTION IN IRS'S OPERATIONS THAT WOULD
BE CAUSED BY A RETURN TO THE PREEXISTING PRACTICE, THE AUTHORITY
CONCLUDES THAT A STATUS QUO ANTE REMEDY IS APPROPRIATE IN ORDER TO BEST
EFFECTUATE THE PURPOSES AND POLICIES OF THE STATUTE. SEE SAN ANTONIO
AIR LOGISTICS CENTER, (AFLC), KELLY AIR FORCE BASE, TEXAS, 5 FLRA NO. 22
(1981); NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA, 6 FLRA NO. 22
(1981).
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 O THE STATUTE, IT IS
HEREBY ORDERED THAT THE INTERNAL REVENUE SERVICE SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY TERMINATING ITS ACCOUNTING TRAINING PROGRAM FOR ITS
CROSS-OVER EMPLOYEES
IN THE BARGAINING UNITS EXCLUSIVELY REPRESENTED BY THE NATIONAL
TREASURY EMPLOYEES UNION,
WITHOUT FIRST GIVING ADEQUATE NOTICE TO THE NATIONAL TREASURY
EMPLOYEES UNION AND AFFORDING IT
THE OPPORTUNITY TO NEGOTIATE CONCERNING THE PROCEDURES TO BE OBSERVED
IN IMPLEMENTING SUCH
CHANGE AND CONCERNING APPROPRIATE ARRANGEMENTS FOR EMPLOYEES
ADVERSELY AFFECTED BY SUCH
CHANGE.
(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 ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) RETURN TO THE PRACTICE WHICH EXISTED PRIOR TO AUGUST 15, 1980
REGARDING PARTICIPATION
IN THE ACCOUNTING TRAINING PROGRAM BY CROSS-OVER EMPLOYEES IN THE
BARGAINING UNITS EXCLUSIVELY
REPRESENTED BY THE NATIONAL TREASURY EMPLOYEES UNION.
(B) NOTIFY THE NATIONAL TREASURY EMPLOYEES UNION OF ANY INTENDED
CHANGE REGARDING
PARTICIPATION IN THE ACCOUNTING TRAINING PROGRAM BY CROSS-OVER
EMPLOYEES AND, UPON REQUEST,
NEGOTIATE CONCERNING THE PROCEDURES TO BE OBSERVED IN IMPLEMENTING
SUCH CHANGE AND CONCERNING
APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY SUCH
CHANGE.
(C) POST AT ITS FACILITIES THROUGHOUT THE BARGAINING UNITS FOR WHICH
NATIONAL TREASURY
EMPLOYEES UNION HOLDS EXCLUSIVE RECOGNITION 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 AN AUTHORIZED OFFICIAL 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 TAKE
TO ENSURE 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 III, FEDERAL LABOR RELATIONS AUTHORITY, IN
WRITING, WITHIN 30 DAYS
FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKE TO
COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., OCTOBER 8, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
OPINION OF LEON B. APPLEWHAITE, MEMBER:
I CONCUR WITH MY COLLEAGUES IN FINDING THAT THE RESPONDENT VIOLATED
SECTION 7116(A)(1) AND (5) OF THE STATUTE BY FAILING TO GIVE NTEU
ADEQUATE NOTICE PRIOR TO IMPLEMENTING THE DECISION TO TERMINATE THE
ACCOUNTING TRAINING PROGRAM (ATP) FOR "CROSS-OVER" EMPLOYEES IN THE
BARGAINING UNIT SO AS TO PERMIT NTEU THE OPPORTUNITY TO SUBMIT PROPOSALS
CONCERNING THE PROCEDURES TO BE OBSERVED IN IMPLEMENTING THE DECISION
AND APPROPRIATE ARRANGEMENTS FOR ADVERSELY AFFECTED EMPLOYEES.
HOWEVER, I DISAGREE THAT THE FOREGOING VIOLATION WARRANTS A STATUS
QUO ANTE REMEDY. 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
FACTORS ENUMERATED IN FEDERAL CORRECTIONAL INSTITUTION, 8 FLRA NO. 111
(1982), I CONCLUDE 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, I NOTE
PARTICULARLY THAT THE ATP WAS NOT RELATED TO OR NECESSARY FOR THE
"CROSS-OVER" EMPLOYEES' CURRENT POSITIONS (AS IT WAS FOR THE
"MANDATORIES"), BUT RATHER PERMITTED THE CROSS-OVER EMPLOYEES TO QUALIFY
FOR OTHER POSITIONS IN THE FUTURE. AS SUCH, THE ATP FOR CROSS-OVER
EMPLOYEES CONSTITUTED ESSENTIALLY A "FRINGE BENEFIT" RATHER THAN ONE OF
THEIR CURRENT WORKING CONDITIONS, AS THE RESPONDENT ADVISED NTEU.
MOREOVER, I NOTE THAT THE RESPONDENT TERMINATED THE ATP FOR CROSS-OVERS
ON A PROSPECTIVE BASIS, WHILE "GRANDFATHERING" IN THE CURRENT
CROSS-OVERS IN THE UNIT WHO WERE ALREADY BENEFITING FROM THE PROGRAM.
UNDER THESE CIRCUMSTANCES, I CONCLUDE THAT THE ADVERSE EFFECTS ON
CROSS-OVER EMPLOYEES IN THE UNIT CAUSED BY THE RESPONDENT'S PROSPECTIVE
TERMINATION OF THE PROGRAM WITH RESPECT TO THEM ARE MORE THAN OUTWEIGHED
BY THE DISRUPTION IN GOVERNMENT OPERATIONS THAT WOULD BE CAUSED BY AN
ORDER REQUIRING THE RESPONDENT TO REINSTATE THE ATP FOR ALL CROSS-OVER
EMPLOYEES ON A NATIONWIDE BASIS.
ACCORDINGLY, I RESPECTFULLY DISSENT FROM THE STATUS QUO ANTE PORTION
OF THE REMEDY ORDERED BY MY COLLEAGUES IN THIS MATTER.
ISSUED, WASHINGTON, D.C., OCTOBER 8, 1982
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 UNILATERALLY TERMINATE THE ACCOUNTING TRAINING PROGRAM
FOR CROSS-OVER EMPLOYEES IN THE BARGAINING UNITS EXCLUSIVELY REPRESENTED
BY THE NATIONAL TREASURY EMPLOYEES UNION, WITHOUT FIRST GIVING ADEQUATE
NOTICE TO THE NATIONAL TREASURY EMPLOYEES UNION AND AFFORDING IT THE
OPPORTUNITY TO NEGOTIATE CONCERNING THE PROCEDURES TO BE OBSERVED IN
IMPLEMENTING SUCH CHANGE AND CONCERNING APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES ADVERSELY AFFECTED BY SUCH CHANGE.
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 RETURN TO THE PRACTICE WHICH EXISTED PRIOR TO AUGUST 15,
1980, REGARDING PARTICIPATION IN THE ACCOUNTING TRAINING PROGRAM BY
CROSS-OVER EMPLOYEES IN THE BARGAINING UNITS EXCLUSIVELY REPRESENTED BY
THE NATIONAL TREASURY EMPLOYEES UNION.
WE WILL NOTIFY THE NATIONAL TREASURY EMPLOYEES UNION OF ANY INTENDED
CHANGE REGARDING PARTICIPATION IN THE ACCOUNTING TRAINING PROGRAM BY
CROSS-OVER EMPLOYEES AND, UPON REQUEST, NEGOTIATE CONCERNING THE
PROCEDURES TO BE OBSERVED IN IMPLEMENTING SUCH CHANGE AND CONCERNING
APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY SUCH
CHANGE.
(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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, REGION III, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: P.O. BOX 33758, WASHINGTON, D.C. 20033-0758, AND WHOSE
TELEPHONE NUMBER IS: (202) 653-8507.
-------------------- ALJ$ DECISION FOLLOWS --------------------
MARK KAIZEN, ESQ.
MICHAEL SUSSMAN, ESQ.
FOR THE RESPONDENT
SUSAN SHINKMAN, ESQ.
FOR THE GENERAL COUNSEL
SEAN J. ROGERS, 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 APRIL 30,
1981 BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
WASHINGTON, D.C. REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED ON
JUNE 24, 1981 AT WASHINGTON, D.C.
THIS PROCEEDING AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (HEREIN CALLED THE ACT). IT STEMS FROM A CHARGE FILED
ON DECEMBER 23, 1980 BY NATIONAL TREASURY EMPLOYEES UNION (HEREIN CALLED
THE UNION) AGAINST INTERNAL REVENUE SERVICE, DISTRICT REGION, NATIONAL
OFFICE UNIT AND SERVICE CENTER UNIT, (HEREIN CALLED THE RESPONDENT).
THE COMPLAINT ALLEGED THAT RESPONDENT REFUSED TO BARGAIN IN GOOD
FAITH WITH THE UNION IN VIOLATION OF SECTIONS 7116(A)(1) AND (5) OF THE
ACT. IN PARTICULAR IT IS ALLEGED THEREIN THAT BY LETTER DATED NOVEMBER
12, 1980 RESPONDENT ADVISED THE UNION THAT IT HAD TERMINATED THE
ACCOUNTING TRAINING PROGRAM FOR FUTURE CROSS-OVER EMPLOYEES, AND THAT
THERE WAS NO OBLIGATION TO BARGAIN RE SUCH TERMINATION.
RESPONDENT FILED AN ANSWER ON MAY 21, 1981 WHICH DENIED THE
COMMISSION OF ANY UNFAIR LABOR PRACTICES. IT ADMITTED THAT, BY A LETTER
DATED NOVEMBER 12, 1980, THE UNION WAS INFORMED OF THE CANCELLATION OF
THE SAID PROGRAM FOR CROSS-OVER EMPLOYEES. THE ANSWER AVERRED THAT THE
UNION WAS THEREBY INFORMED NO FURTHER NEGOTIATIONS WERE NECESSARY SINCE
CURRENT CROSS-OVER EMPLOYEES COULD COMPLETE THE PROGRAM, AND THUS NO
IMPACT UPON THEM EXISTED. FURTHER, IT IS AVERRED THAT THE UNION WAS
GIVEN TIMELY NOTICE RE CROSS-OVERS AND THE PROGRAM'S TERMINATION; THAT
THE PARTIES NEGOTIATED AS TO THE EFFECT UPON SUCH EMPLOYEES AND
RESPONDENT BARGAINED IN GOOD FAITH.
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. /7/
UPON THE ENTIRE RECORD HEREIN, FROM BY OBSERVATIONS 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 THE COLLECTIVE
BARGAINING REPRESENTATIVE OF RESPONDENT'S PROFESSIONAL AND
NON-PROFESSIONAL EMPLOYEES AT THE DISTRICT OFFICES, REGIONAL OFFICES AND
NATIONAL OFFICE, THE SERVICE CENTERS, THE DATA CENTER, DETROIT MICHIGAN,
AND THE NATIONAL COMPUTER CENTER, MARTINSBURG, WEST VIRGINIA.
2. FOR MANY YEARS RESPONDENT HAS PROVIDED AN ACCOUNTING TRAINING
PROGRAM (ATP) FOR ITS EMPLOYEES CLASSIFIED AS MANDATORIES AND
CROSS-OVERS. MANDATORIES HAVE ALWAYS BEEN DESCRIBED AS EMPLOYEES FOR
WHOM ADDITIONAL CREDITS ARE MANDATORY TO REACH A JOURNEYMEN LEVEL IN
THEIR CAREERFIELD (I.E., TAX AUDITORS AND TAXPAYER SERVICE SPECIALISTS).
CROSS-OVERS ARE DEFINED AS EMPLOYEES WHO ARE COMPETITIVELY SELECTED TO
RECEIVE ACCOUNTING TRAINING TO QUALIFY FOR THE REVENUE AGENT SERIES.
/8/
3. THE ATP CONTAINS VARIOUS PROVISIONS REGARDING IN-SERVICE COURSES,
OUT-SERVICE TRAINING, TRAINING FOR CROSS-OVERS, REIMBURSEMENT TO BOTH
CLASSES FOR COSTS INCURRED, OFFICIAL TIME ALLOWANCE, AND THE PHASING OUT
OF THE USE OF SELF-STUDY MATERIALS.
4. UNDER DATE OF NOVEMBER 9, 1979 RESPONDENT SENT TO UNION HEREIN
PROPOSED REVISIONS OF THE ATP. IT SET FORTH DESIRED CHANGES TO THE
MANUAL TEST AND REQUESTED THAT ANY COMMENTS BY THE BARGAINING AGENT BE
DIRECTED TO JORDON NYE. THE DESIRED MODIFICATIONS AFFECTED BOTH
MANDATORY AND CROSS-OVER EMPLOYEES.
5. BY LETTER DATED NOVEMBER 27, 1979 FRANK D. FERRIS, DIRECTOR OF
TRAINING AND NEGOTIATIONS FOR THE NATIONAL TREASURY EMPLOYEES UNION,
WROTE MICHAEL DOLAN, CHIEF, LABOR RELATIONS BRANCH OF RESPONDENT AND
DECLARED THAT THE UNION WAS INVOKING ITS RIGHT TO NEGOTIATE OVER THE
PROPOSED CHANGES TO THE TRAINING MANUAL. IN CONNECTION THEREWITH, THE
PROPOSALS OF THE UNION CONCERNING THE ATP, AS IT RELATED TO BOTH
MANDATORY AND CROSS-OVER EMPLOYEES, WAS HAND-DELIVERED TO RESPONDENT ON
DECEMBER 21, 1979.
6. A MEETING BETWEEN THE PARTIES WAS HELD ON JANUARY 8, 1980. /9/
IT WAS ATTENDED BY FERRIS ON BEHALF OF THE UNION, AND RESPONDENT WAS
REPRESENTED BY SUSAN BARLIANT, CHIEF OF COLLECTIVE BARGAINING,
LABOR-RELATIONS BRANCH, JORDON NYE, SENIOR LABOR RELATIONS SPECIALIST,
AND WILLIAM M. COFER, CHIEF OF TAXPAYER SERVICE, RETURNS PROCESSING
BRANCH. AT THIS SESSION THE PROPOSALS SUBMITTED BY BOTH SIDES WERE
RECEIVED. COFER EXPLAINED THAT THE REVISIONS TO THE ATP WERE PREPARED
BY RESPONDENT BECAUSE THE OLD PROGRAM WAS INEFFECTIVE AND COSTLY. IN
RESPECT TO THE PROPOSALS MADE BY THE UNION, MANAGEMENT REPRESENTATIVES
TOOK THE POSITION THAT SOME PROVISIONS WRESTED CONTROL FROM THE
EMPLOYER. AGREEMENT WAS REACHED ON MOST MATTERS EXCEPT FOR: (1) RIGHT
OF AN EMPLOYEE TO GRIEVE DISALLOWANCE OF FOUR HOURS STUDY TIME FOR WORK
RELATED CAUSES, (2) DISTRIBUTION OF THE AGREEMENT, (3) DEFINING "JUST
CAUSE" IN CONNECTION WITH THE UNION'S PROPOSAL THAT NO EMPLOYEE BE
REMOVED FROM THE PROGRAM EXCEPT FOR JUST CAUSE.
7. THE PARTIES MET AGAIN ON JANUARY 11 AT WHICH TIME NYE TOLD FERRIS
THAT THE UNION'S PROPOSALS CONSTITUTED STRINGENT DEMANDS AND WOULD
IMPOSE A BURDEN UPON MANAGEMENT. HE ALSO INFORMED FERRIS THAT IF THE
LATTER PERSISTED IN THE THREE DEMANDS WHICH WERE CONTROVERSIAL,
RESPONDENT WOULD WITHDRAW THE PROGRAM. /10/
8. ON FEBRUARY 26 NYE AND FERRIS MET TO DISCUSS THE PROPOSALS. NYE
TOLD THE UNION REPRESENTATIVE THAT MANAGEMENT WAS SERIOUSLY CONSIDERING
TERMINATING THE ACCOUNTING PROGRAM; THAT FERRIS SHOULD SERIOUSLY
CONSIDER DROPPING HIS PROPOSALS. FURTHER, HE STATED THIS WAS AN
EMPLOYEE FRINGE BENEFIT, AND IN THAT CONTEXT IT WAS NOT THE USUAL TYPE
OF NEGOTIATIONS.
9. ON MARCH 25, /11/ THE UNION INVOKED THE SERVICES OF THE FEDERAL
MEDIATION AND CONCILIATION SERVICE IN CONNECTION WITH THE BARGAINING
PROCESS BETWEEN THE PARTIES. A MEETING ATTENDED BY THE PARTIES'
REPRESENTATIVES AND A MEDIATOR WAS HELD ON APRIL 21. PRIOR THERETO THE
MEDIATOR WAS FURNISHED A LIST OF PROPOSALS AGREED UPON AS WELL AS THOSE
STILL AT ISSUE. HE WAS ALSO SUPPLIED WITH THE PROVISION WHICH THE UNION
DESIRED TO INCLUDE IN THE AGREEMENT. NYE, ON BEHALF OF RESPONDENT,
DECLARED THAT THE PARTIES HAS NOT BEEN ABLE TO REACH AN AGREEMENT
DESPITE THE NEGOTIATIONS; THAT FERRIS COULD EITHER ACCEPT MANAGEMENT'S
LAST PROPOSAL, OR ELSE RESPONDENT WOULD TERMINATE THE ATP.
10. SINCE NO AGREEMENT WAS REACHED BY THE PARTIES, THE UNION, BY
WRITTEN REQUEST DATED JUNE 20, SOUGHT THE ASSISTANCE OF THE FEDERAL
SERVICE IMPASSES PANEL. RESPONDENT'S REPRESENTATIVE, MICHAEL P. DOLAN,
WROTE THE FEDERAL SERVICE IMPASSE PANEL ON JUNE 30 WITH A COPY TO
FERRIS, STATING THAT MANAGEMENT HAD RECONSIDERED ITS PROPOSAL AND
DECIDED "NOT TO IMPLEMENT THE PROGRAM." FURTHER, DOLAN STATED THAT
RESPONDENT WAS THEREFORE WITHDRAWING ITS PROPOSAL. IN VIEW OF THE
AFORESAID ACTION TAKEN BY THE EMPLOYER, FERRIS WROTE THE FEDERAL SERVICE
IMPASSE PANEL ON JULY 28 THAT THE UNION DESIRED TO WITHDRAW ITS PETITION
FOR ASSISTANCE.
11. THE ATP FOR CROSS-OVER EMPLOYEES WAS TERMINATED BY RESPONDENT IN
AUGUST 15, HOWEVER, THE TRAINING PROGRAM FOR MANDATORIES CONTINUED IN
EFFECT AND HAS NOT BEEN TERMINATED.
12. RECORD FACTS REVEAL THAT IN SEPTEMBER CERTAIN CHAPTERS OF THE
UNION NOTIFIED FERRIS THAT THE ATP FOR CROSS-OVER EMPLOYEES HAD BEEN
TERMINATED BY RESPONDENT. ACCORDINGLY, UNDER DATE OF OCTOBER 20 FERRIS
WROTE A LETTER TO BARLIANT STATING HE JUST LEARNED OF SUCH TERMINATION;
THAT FERRIS HAD UNDERSTOOD RESPONDENT HAS PLANNED ONLY TO WITHDRAW THE
INITIATIONS MADE EARLIER BUT TO KEEP THE PROGRAM. FURTHER, THE UNION
AGENT STATED THEREIN THAT IF THE AGENCY INTENDED TO TERMINATE THE BASIC
PROGRAM, IT SHOULD NOTIFY FERRIS SO THAT THE PARTIES COULD NEGOTIATE
THEREON.
13. IN ITS REPLY LETTER OF NOVEMBER 12 BARLIANT ADVISED FERRIS THAT
IT HAD ALWAYS MADE KNOWN TO THE UNION ITS INTENTIONS TO CANCEL THE
PROGRAM FOR CROSS-OVERS IF AN AGREEMENT COULD NOT BE REACHED. FURTHER,
IT WAS STATED THAT THE RESPONDENT TERMINATED THE ATP FOR CROSS-OVERS IF
AN AGREEMENT COULD NOT BE REACHED. FURTHER, IT WAS STATED THAT THE
RESPONDENT TERMINATED THE ATP FOR CROSS-OVER EMPLOYEES IN THE FUTURE;
CURRENT CROSS-OVER EMPLOYEES BENEFITTING FROM THE PROGRAM WOULD NOT BE
AFFECTED. BARLIANT ALSO MENTIONED THAT THEY AGREED TO "GRANDFATHER"
CURRENT CROSS-OVER EMPLOYEES AND PERMIT THEM TO COMPLETE ADDITIONAL
ACCOUNTING COURSES NEEDED TO COMPLETE THE PROGRAM. THE PROGRAM
REMAINED
IN EXISTENCE FOR MANDATORY EMPLOYEES. FERRIS WAS ALSO ADVISED THAT
SINCE NO EMPLOYEES WOULD BE ADVERSELY AFFECTED, RESPONDENT DID NOT
BELIEVE ITS ACTION REQUIRED ANY OBLIGATION TO BARGAIN FURTHER IN THAT
ISSUE. FINALLY, BARLIANT COMMENTED IN THE LETTER THAT THE AGENCY WOULD
REINSTATE THE PROGRAM FOR CROSS-OVER IN EXCHANGE FOR THE UNION SIGNING
MANAGEMENT'S LAST PROPOSAL MEMORANDUM OF AGREEMENT (GC 7); THAT IF
FERRIS DECIDES TO DO SO, HE SHOULD RESPOND BY NOVEMBER 21.
14. FERRIS RESPONDED TO BARLIANT IN A LETTER DATED DECEMBER 19
WHEREIN THE UNION AGENT AVERRED THAT HIS FILES FAIL TO DISCLOSE ANY
NOTICE FROM RESPONDENT THAT THE CROSS-OVER ATP WOULD BE TERMINATED. IT
WAS ALSO STATED THAT THE UNION REJECTED BARLAINT'S OFFER OF NOVEMBER 12,
AND FERRIS PROPOSED THAT THE PARTIES BARGAIN RE THE MATTER.
15. THE UNION REQUESTED THE ASSISTANCE OF THE FEDERAL MEDIATION AND
CONCILIATION SERVICE BY FILING A NOTICE WITH SAID AGENCY ON DECEMBER 19.
HOWEVER, NO FURTHER DISCUSSIONS OR MEETINGS WERE HELD RE THE
TERMINATION OF ATP FOR THE CROSS-OVER EMPLOYEES.
CONCLUSIONS
IN ASSERTING THAT RESPONDENT HAS VIOLATED SECTIONS 7116(A)(1) AND (5)
OF THE ACT, THE GENERAL COUNSEL CONTENDS THAT THE EMPLOYER HEREIN
TERMINATED THE TRAINING PROGRAM (ATP) FOR CROSS-OVER EMPLOYEES WITHOUT
PROPERLY NOTIFYING THE UNION. ACCORDINGLY, IT IS ARGUED THAT SUCH
TERMINATIONS CONSTITUTED A REFUSAL TO BARGAIN AS TO THE SUBSTANCE, AS
WELL AS THE IMPACT, OF ITS DECISION IN THIS REGARD. MOREOVER, GENERAL
COUNSEL TAKES THE POSITION THAT A STATUS QUO ANTE REMEDY IS APPROPRIATE
UNDER THE CIRCUMSTANCES.
IN DISPUTING THE COMMISSION OF ANY UNFAIR LABOR PRACTICES, RESPONDENT
ARGUES THAT NOTIFICATION WAS IN FACT GIVEN THE UNION OF THE INTENDED
TERMINATION OF ATP, FOR CROSS-OVERS; THAT, DESPITE SUCH NOTICE, THE
UNION FAILED TO REQUEST BARGAINING OVER SUCH MATTERS; AND, IN SUCH, THE
EMPLOYER HAS FULFILLED ITS OBLIGATION IN THIS REGARD. /12/
IT IS NOW WELL ESTABLISHED THAT MANAGEMENT IN THE PUBLIC SECTOR IS
REQUIRED TO GIVE DUE NOTICE TO THE BARGAINING AGENT WHEN IT PROPOSES TO
CHANGE WORKING CONDITIONS. THIS OBLIGATION IS IMPOSED UPON THE EMPLOYER
SO THAT A UNION MAY, IF IT DESIRES, REQUEST BARGAINING ON SUCH CHANGES
AND THE PARTIES MAY NEGOTIATE THEREON. AS INDICATED IN FEDERAL RAILROAD
ADMINISTRATION, A/SLMR NO. 418 THE RIGHT TO A DIALOGUE, WHERE AN
OBLIGATION TO BARGAIN EXISTS, IS MEANINGFUL ONLY WHEN AGENCY MANAGEMENT
AFFORDS THE EXCLUSIVE REPRESENTATIVE REASONABLE NOTIFICATION AND AMPLE
OPPORTUNITY TO EXPLORE MATTERS PRIOR TO TAKING ACTION.
PAST DECISIONS ALSO REVEAL THAT NOTICE OF PROPOSED CHANGES IN WORKING
CONDITIONS MUST BE CLEAR AND PRECISE. THUS, IN JACKSONVILLE DISTRICT,
INTERNAL REVENUE SERVICE, JACKSONVILLE, FLORIDA, A/SLMR NO. 893,
REFERENCE TO FUTURE TESTING OF EMPLOYEES TO ASCERTAIN THEIR KNOWLEDGE
(PRE-TESTS) AND TO DISCOVER HOW EFFECTIVE TRAINING HAD BEEN
(POST-TESTS), WHICH WAS MENTIONED AT A MEETING BETWEEN MANAGEMENT AND
THE UNION, WAS HELD INSUFFICIENT TO CONSTITUTE ADEQUATE NOTICE OF A
CHANGE IN THE TESTING PROGRAM PRIOR TO ITS INSTITUTION. THE ASSISTANT
SECRETARY CONCLUDED THAT SUCH A REFERENCE DID NOT CLEARLY INFORM THE
BARGAINING AGENT OF THE CONTEMPLATED CHANGES SO AS TO ENABLE THE UNION
TO BARGAIN MEANINGFULLY PRIOR TO ITS IMPLEMENTATION.
THE DISCONTINUANCE HEREIN OF THE CROSS-OVER FEATURE OF THE ATP BY
RESPONDENT HEREIN RESULTED FROM THE INABILITY OF THE PARTIES TO AGREE ON
PROPOSED REVISIONS TO THE TRAINING PROGRAM. ATTENTION MUST BE DIRECTED
TO THE COMMUNICATIONS FROM THE EMPLOYER TO THE UNION DURING THIS PERIOD
IN DETERMINING WHETHER APPROPRIATE NOTICE WAS GIVEN OF THE ATP
TERMINATION. THUS, AT THE JANUARY 11 MEETING BETWEEN THE PARTIES
RESPONDENT'S REPRESENTATIVE NYE TOLD UNION AGENT FERRIS THAT IF THE
LATTER INSISTED UPON THREE PARTICULAR PROPOSALS-- WHICH WERE REJECTED BY
MANAGEMENT-- THE RESPONDENT WOULD WITHDRAW THE PROGRAM. SECONDLY, AT
THE APRIL 21 MEETING HELD BEFORE THE MEDIATOR FROM THE FEDERAL MEDIATION
AND CONCILIATION SERVICE NYE INFORMED FERRIS THAT IF MANAGEMENT'S LAST
PROPOSAL WAS NOT ACCEPTED, THE ATP PROGRAM WOULD BE TERMINATED.
FINALLY, AFTER THE UNION INVOKED THE SERVICES OF THE FEDERAL SERVICE
IMPASSE PANEL, RESPONDENT WROTE THE PANEL-- WITH A COPY TO FERRIS-- THAT
THE EMPLOYER HAD RECONSIDERED ITS PROPOSAL AND "DECIDED NOT TO IMPLEMENT
THE PROGRAM" AND WAS WITHDRAWING ITS PROPOSAL.
WHILE NOT FREE FROM DOUBT, I AM PERSUADED THAT RESPONDENT DID NOT
FURNISH THE UNION WITH ADEQUATE NOTIFICATION REGARDING THE TERMINATION
OF THE TRAINING PROGRAM FOR CROSS-OVER EMPLOYEES. BOTH ON JANUARY 11
AND APRIL 21 THE EMPLOYER'S NOTICE RE TERMINATION WAS CONDITIONAL AND
QUALIFIED. ITS EFFECTUATION WAS DEPENDENT UPON ACTION ON THE PART OF
THE UNION, I.E., ACCEPTANCE BY THE LATTER OF MANAGEMENT'S PROPOSED
REVISIONS TO THE ATP. PROPER NOTICE OF ACTION TO BE TAKEN BY AN
EMPLOYER REQUIRES AN UNQUALIFIED PRONOUNCEMENT. UNTIL SUCH
UNCONDITIONAL NOTIFICATION WAS GIVEN BY RESPONDENT OF ITS INTENTION TO
TERMINATE THE TRAINING PROGRAM, IT WOULD BE UNREASONABLE TO REQUIRE THE
UNION TO REQUEST BARGAINING IN RESPECT THERETO. /13/ IN EACH INSTANCE,
DURING THE MEETINGS IN JANUARY AND APRIL, RESPONDENT INFORMED FERRIS
THAT THE PROGRAM WOULD TERMINATE IF THE UNION DID NOT AGREE TO
MANAGEMENT'S PROPOSALS. SUCH NOTICE NEITHER CLEARLY ADVISED THE UNION
AGENT DEFINITELY AS TO THE TERMINATION NOR DID IT APPRISE HIM OF WHEN
THE ACTION WOULD BE TAKEN. CF. DEPARTMENT OF THE TREASURY, INTERNAL
REVENUE SERVICE, INDIANAPOLIS, INDIANA, A/SLMR NO. 909.
IN RESPECT TO THE FINAL PRE-TERMINATION NOTICE GIVEN TO THE UNION IN
RESPONDENT'S LETTER OF JULY 20, I CONCLUDE THAT THE LANGUAGE EMPLOYED BY
MANAGEMENT FALLS FAR AFIELD FROM PROPER NOTIFICATION. THE STATED
DECLARATION "NOT TO IMPLEMENT THE PROGRAM" COULD WELL BE INTERPRETED BY
THE UNION AS AN INTENTION TO ABANDON THE PROPOSED REVISIONS RATHER THAN
THE ATP. THE TRAINING PROGRAM HAD BEEN IN EFFECT AND NEEDED NO
IMPLEMENTATION. THUS, IT IS UNDERSTANDABLE THAT, AS FERRIS STATED IN
HIS LETTER OF OCTOBER 20, THE UNION AGENT UNDERSTOOD THE RESPONDENT WAS
WITHDRAWING ITS EARLIER "INITIATIONS" AND WOULD RETAIN THE BASIC
PROGRAM.
THAT MANAGEMENT'S INTENTIONS AND PLANS RE THE PROGRAM WERE NOT
PRECISE IS SUPPORTED, TO SOME EXTENT, BY ITS DECLARED NEED TO CLARIFY
THE TRAINING POSTURE IN ITS NOVEMBER 12 LETTER. IN SO DOING
RESPONDENT'S CHIEF OF COLLECTIVE BARGAINING, SUSAN BARLIANT, INFORMED
FERRIS THAT THE EMPLOYER AGREED TO "GRANDFATHER" CURRENT CROSS-OVER
EMPLOYEES AND PERMIT THEM TO COMPLETE ADDITIONAL ACCOUNTING COURSES;
THAT THE ATP WAS TERMINATED FOR CROSS-OVERS IN THE FUTURE; AND THAT NO
NEED EXISTED TO BARGAIN RE THE MATTER.
THE FOREGOING CONVINCES ME THAT, PRIOR TO AUGUST 15 WHEN THE ATP FOR
CROSS-OVERS WAS ENDED, RESPONDENT FAILED TO GIVE CLEAR AND SPECIFIC
NOTIFICATION TO THE UNION OF ITS INTENT TO TAKE SUCH ACTION. APART FROM
THE FACT THAT NO MENTION WAS EVER MADE BY MANAGEMENT THAT THE PROGRAM
WOULD BE DISCONTINUED FOR CROSS-OVERS ONLY BUT CONTINUE FOR PRESENT
CROSS-OVERS, I.E., GRANDFATHERED IN, THE NOTIFICATION BY RESPONDENT TO
TERMINATE ATP FOR CROSS-OVERS LACKED THE REQUISITE SPECIFICITY. NOT
ONLY WAS IT CONTINGENT IN NATURE, BUT THE FINAL EXPRESSION BY MANAGEMENT
WAS, IN MY OPINION, AMBIGUOUS AND SUSCEPTIBLE TO VARYING CONCLUSIONS
REGARDING SUCH TERMINATION. ACCORDINGLY, I CONCLUDE RESPONDENT FAILED
IN ITS OBLIGATION /14/ TO SPECIFICALLY NOTIFY THE UNION OF ITS
INTENTIONS AND PROVIDE THE LATTER WITH A REASONABLE OPPORTUNITY TO
REQUEST BARGAINING AS TO THE TERMINATION OF ATP FOR CROSS-OVER
EMPLOYEES-- ALL IN VIOLATION OF SECTIONS 7116(A)(1) AND (5) OF THE
STATUTE.
HAVING FOUND THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5)
OF THE ACT. I RECOMMEND THE AUTHORITY ADOPT THE FOLLOWING ORDER:
ORDER /15/
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 INTERNAL REVENUE SERVICE
(DISTRICT REGION, NATIONAL OFFICE UNIT AND SERVICE CENTER UNIT), SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY TERMINATING ITS ACCOUNTING TRAINING PROGRAM FOR ITS
CROSS-OVER EMPLOYEES
IN THE UNIT REPRESENTED BY THE NATIONAL EMPLOYEES UNION, WITHOUT
FIRST NOTIFYING THE NATIONAL
TREASURY EMPLOYEES UNION AND AFFORDING SUCH REPRESENTATIVE THE
OPPORTUNITY TO MEET AND
NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS,
CONCERNING THE IMPACT AND
IMPLEMENTATION OF SUCH ACTION.
(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 ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSE AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) RESTORE AND REINSTATE THE ACCOUNTING TRAINING PROGRAM, WHICH WAS
IN EFFECT PRIOR TO ITS
TERMINATION ON AUGUST 15, 1980, FOR ALL CROSS-OVER EMPLOYEES IN THE
UNIT REPRESENTED BY THE
NATIONAL TREASURY EMPLOYEES UNION.
(B) NOTIFY THE NATIONAL TREASURY EMPLOYEES UNION OF ANY DECISION TO
TERMINATE THE
ACCOUNTING TRAINING PROGRAM FOR CROSS-OVER EMPLOYEES IN THE UNIT
REPRESENTED BY NATIONAL
TREASURY EMPLOYEES UNION, AND, UPON REQUEST, MEET AND NEGOTIATE, TO
THE EXTENT CONSONANT WITH
LAW AND REGULATIONS, CONCERNING THE IMPACT AND IMPLEMENTATION OF SUCH
ACTION.
(C) POST AT THE FACILITIES OF INTERNAL REVENUE SERVICE (DISTRICT
REGION, NATIONAL OFFICE
UNIT AND SERVICE CENTER UNIT) 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 DISTRICT DIRECTOR, AND THEY SHALL BE POSTED FOR 60
CONSECUTIVE DAYS THEREAFTER
IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY
POSTED. THE DISTRICT DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(D) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING, WITHIN
30 DAYS FROM THE DATE
OF THIS ORDER, WHICH STEPS HAVE BEEN TAKE TO COMPLY THEREWITH.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: DECEMBER 22, 1981
WASHINGTON, D.C.
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 OUR EMPLOYEES THAT:
WE WILL NOT UNILATERALLY TERMINATE OUR ACCOUNTING TRAINING PROGRAM
FOR THE CROSS-OVER EMPLOYEES, IN THE UNIT REPRESENTED BY THE NATIONAL
TREASURY EMPLOYEES UNION, WITHOUT FIRST NOTIFYING THE NATIONAL TREASURY
EMPLOYEES UNION AND AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO
MEET AND NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS,
CONCERNING THE IMPACT AND IMPLEMENTATION OF SUCH ACTION.
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 RESTORE AND REINSTATE THE ACCOUNTING TRAINING PROGRAM, WHICH
WAS IN EFFECT PRIOR TO AUGUST 15, 1980, FOR ALL CROSS-OVER EMPLOYEES IN
THE UNITED REPRESENTED BY THE NATIONAL TREASURY EMPLOYEES UNION.
WE WILL NOTIFY THE NATIONAL TREASURY EMPLOYEES UNION OF ANY DECISION
TO TERMINATE THE ACCOUNTING TRAINING PROGRAM FOR CROSS-OVER EMPLOYEES IN
THE UNIT REPRESENTED BY THE NATIONAL TREASURY EMPLOYEES UNION, AND, UPON
REQUEST MEET AND NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, CONCERNING THE IMPACT AND IMPLEMENTATION OF SUCH ACTION.
(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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 3, WHOSE
ADDRESS IS: 1111 18TH STREET, NW., SUITE 700, WASHINGTON, D.C. 20036,
AND WHOSE TELEPHONE NUMBER IS (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ THE RESPONDENT ALSO FILED AN UNTIMELY OPPOSITION TO THE CHARGING
PARTY'S EXCEPTIONS WHICH HAS NOT BEEN CONSIDERED.
/2/ CROSS-OVERS ARE DEFINED AS EMPLOYEES WHO ARE COMPETITIVELY
SELECTED TO RECEIVE ACCOUNTING TRAINING TO QUALIFY FOR THE REVENUE AGENT
SERIES.
/3/ SEE U.S. DEPARTMENT OF THE AIR FORCE, AIR FORCE SYSTEMS COMMAND,
ELECTRONIC SYSTEMS DIVISION, HANSCOM AFB, MASSACHUSETTS, 5 FLRA NO. 88
(1981), WHEREIN THE AUTHORITY ADOPTED THE JUDGE'S CONCLUSION THAT AN
AGENCY MUST GIVE THE UNION "ADEQUATE NOTICE" OF ITS DECISION TO
EFFECTUATE A CHANGE, I.E., SPECIFIC NOTICE OF ANY INTENDED CHANGE, AND
THAT A MERE PASSING REFERENCE TO A GENERAL SUBJECT MATTER WITHOUT
MENTIONING ANY CONTEMPLATED CHANGE RELATING TO SUCH MATTER DOES NOT
CONSTITUTE ADEQUATE NOTICE. IN THAT CASE, THE AUTHORITY FURTHER ADOPTED
THE JUDGE'S FINDING, IN THE CIRCUMSTANCES PRESENTED, THAT MANAGEMENT HAD
GIVEN THE UNION ADEQUATE ADVANCE NOTICE OF THE DOWNGRADINGS IN QUESTION.
/4/ SEE NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS AND
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINSTRATION, 6 FLRA NO.
106 (1981). NTEU ATTEMPTS TO DISTINGUISH THIS CASE FROM NATIONAL
ASSOCIATION OF AIR TRAFFIC SPECIALISTS ON THE BASIS THAT THE ATP
INVOLVED HEREIN DID NOT RELATE TO THE CROSS-OVER EMPLOYEES' CURRENT
POSITIONS BUT, RATHER, WAS INTENDED TO HELP THEM QUALIFY FOR A DIFFERENT
CAREER SERIES. THE AUTHORITY FINDS SUCH A DISTINCTION UNPERSUASIVE.
THUS, MANAGEMENT'S RIGHT TO DECIDE WHETHER TO PROVIDE OR DISCONTINUE
TRAINING FOR BARGAINING UNIT EMPLOYEES DURING DUTY HOURS IS PROTECTED BY
SECTION 7106(A)(2)(B) OF THE STATUTE IRRESPECTIVE OF WHETHER SUCH
TRAINING DIRECTLY RELATES TO THE EMPLOYEES' CURRENTLY ASSIGNED DUTIES.
/5/ SECTION 7106(B)(2) AND (3) PROVIDES:
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
. . . .
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION; OR
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
/6/ AS STATED IN FEDERAL CORRECTIONAL INSTITUTION:
(S)TATUS QUO ANTE REMEDIES MAY BE ISSUED IN CERTAIN REFUSAL TO
BARGAIN CASES EVEN WHERE THE
AGENCY'S DECISION ITSELF IS NOT NEGOTIABLE . . . . (T)HE
APPROPRIATENESS OF A STATUS QUO ANTE
REMEDY MUST BE DETERMINED ON A CASE-BY-CASE BASIS, CAREFULLY
BALANCING THE NATURE AND
CIRCUMSTANCES OF THE PARTICULAR VIOLATION AGAINST THE DEGREE OF
DISRUPTION IN GOVERNMENT
OPERATIONS THAT WOULD BE CAUSED BY SUCH A REMEDY.
/7/ IN ITS BRIEF RESPONDENT MOVED TO CORRECT THE TRANSCRIPT IN
VARIOUS RESPECTS. THE MOTION IS GRANTED AND THE TRANSCRIPT IS CORRECTED
AS FOLLOWS: (TABLE OMITTED)
/8/ SECTION 220 OF IR MANUAL, FEBRUARY 2, 1978.
/9/ UNLESS OTHERWISE INDICATED, ALL DATES HEREINAFTER MENTIONED
OCCURRED IN 1980.
/10/ WHILE RESPONDENT'S WITNESS TESTIFIED THAT NYE, IN STATING THERE
WOULD BE SUCH WITHDRAWAL, WAS REFERRING TO CROSS-OVERS ONLY, I DO NOT
FIND SUCH DELIMITATION WAS MADE AT EITHER THE JANUARY 8, OR 11 MEETING.
/11/ FERRIS AND NYE HAD TWO BRIEF MEETINGS, MARCH 7 AND 14, TO
DISCUSS COUNTERPROPOSALS BUT NO AGREEMENT WAS REACHED BETWEEN THEM.
/12/ RESPONDENT CONCEDES ITS DUTY TO BARGAIN AS TO THE IMPACT AND
IMPLEMENTATION OF THE TERMINATION OF ATP AS TO CROSS-OVERS, BUT IT
INSISTS THAT THE DECISION TO TERMINATE THE PROGRAM IS NON-NEGOTIABLE.
/13/ A VALID REQUEST TO BARGAIN RE TERMINATION OF ATP WOULD BE A
PREREQUISITE ONLY AFTER A PROPER AND ADEQUATE NOTIFICATION OF SUCH
ACTIONS WAS GIVEN THE UNION.
/14/ THE DECISION BY MANAGEMENT TO ABANDON THE TRAINING PROGRAM FOR
CROSS-OVERS DOES FALL, IN MY OPINION, WITHIN THE MANAGEMENT RIGHT
PROVISIONS SET FORTH IN SECTION 7106 OF THE ACT. NEVERTHELESS, AN
OBLIGATION EXISTS TO BARGAIN RE ITS IMPLEMENTATION AND ADVERSE EFFECT
UPON UNIT EMPLOYEES.
/15/ A STATUS QUO ANTE REMEDY, AS REQUESTED, IS RECOMMENDED HEREIN.
NO EVIDENCE HEREIN WILL SUSTAIN A FINDING THAT SUCH A REMEDY WOULD
RESULT IN A SERIOUS DISRUPTION OF RESPONDENT'S ACTIVITIES. MOREOVER, I
CONCLUDE THAT THE REINSTATEMENT OF SUCH ATP FOR CROSS-OVER EMPLOYEES IS
UNLIKELY TO INDUCE A HARDSHIP UPON MANAGEMENT. SUCH CONCLUSION SEEMS
PARTICULARLY WARRANTED SINCE THE PROGRAM WAS TERMINATED JUST FOR FUTURE
CROSS-OVERS. SEE SAN ANTONIO AIR LOGISTICS CENTER ET. AL., 5 FLRA NO.
22