[ v16 p904 ]
16:0904(124)CA
The decision of the Authority follows:
16 FLRA No. 124
INTERNAL REVENUE SERVICE
(DISTRICT, REGION, NATIONAL
OFFICE UNITS)
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION
Charging Party
Case Nos. 3-CA-2206
3-CA-2876
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices, and recommending that the Respondent be
ordered to cease and desist therefrom and take certain affirmative
action. Thereafter, the Respondent and the Charging Party filed
exceptions to the Judge's Decision.
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 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 recommended Order.
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 in good faith with National
Treasury Employees Union, its employees' exclusive collective bargaining
representative, by declaring nonnegotiable the proposals made by
National Treasury Employees Union on March 26, 1981, as explained to the
Federal Service Impasses Panel on April 7, 1981 by Frank Ferris,
National Treasury Employees Union's Director of Negotiations, concerning
staffing the Commodity Tax Shelter and Windfall Profit Tax programs.
(b) In any like or related manner interfering with, restraining, or
coercing its 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) Upon request of National Treasury Employees Union, the employees'
exclusive collective bargaining representative, negotiate, to the extent
consonant with law and regulations, concerning staffing of the Commodity
Tax Shelter and Windfall Profit Tax programs.
(b) Post at its National Office, Regional Offices and District
Offices 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, or his
designee, and shall be posted and maintained by him for 60 consecutive
days thereafter, in conspicuous places, including bulletin boards and
all 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 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., December 18, 1984
/s/ Henry B. Frazier III
Henry B. Frazier III, Acting
Chairman
/s/ Ronald W. Haughton
Ronald W. Haughton, 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 in good faith with National
Treasury Employees Union, our employees' exclusive collective bargaining
representative, by declaring nonnegotiable the proposals made by
National Treasury Employees Union on March 26, 1981, as explained to the
Federal Service Impasses Panel on April 7, 1981 by Frank Ferris,
National Treasury Employees Union's Director of Negotiations, concerning
staffing the Commodity Tax Shelter and Windfall Profit Tax programs.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce any employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL upon request of National Treasury Employees Union, our
employees' exclusive collective bargaining representative, negotiate, to
the extent consonant with law and regulations, concerning staffing of
the Commodity Tax Shelter and Windfall Profit Tax programs.
(Agency or 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 III, Federal Labor Relations Authority whose address
is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone
number is: (202) 653-8452.
-------------------- ALJ$ DECISION FOLLOWS --------------------
INTERNAL REVENUE SERVICE
(DISTRICT, REGION, NATIONAL
OFFICE UNITS)
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case Nos. 3-CA-2206
3-CA-2876
William L. Bransford, Esq. and
David Pryor, Esq.
For the Respondent
Joseph V. Kaplan, Esq.
For the Charging Party
Clara A. Williamson, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
7101, et seq., (herein referred to as the Statute).
Upon unfair labor practice charges filed by the National Treasury
Employees Union (herein referred to as the Union or NTEU) on March 31,
1981 and September 9, 1981 against the Internal Revenue Service (herein
referred to as Respondent or IRS), the General Counsel of the Authority,
by the Regional Director for Region 3, issued an Order Consolidating
Cases, Complaint and Notice of Hearing on October 9, 1981. The
Complaint alleged that on or about March 26, 1981, and thereafter,
Respondent failed and refused to bargain in good faith with the Union
concerning selection procedures for the staffing of work groups for
Respondent's Windfall Profits Tax Program and Commodity Tax Shelter
Program.
A hearing on the Complaint was conducted on December 8, 1981 in
Washington, D.C. at which time all parties were represented by counsel
and afforded full opportunity to adduce evidence, call, examine and
cross-examine witnesses, and argue orally. Excellent briefs were filed
by counsel for all parties.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following findings of fact, conclusions of law and
recommendations:
Chronology of Events
At all times material herein, the Union has been the exclusive
collective bargaining representative for various professional employees
located in Respondent's District, Regional and National offices.
The Commodity Tax Shelter Program
On August 11, 1980 Respondent notified the Union of its intent to
develop and implement Commodity Tax Shelter (CTS) work groups within the
agency's Examination Division which would specialize in tax shelter
revenue issues. These work groups were to be established in 9 different
District offices around the country and included a total of 14 revenue
agents in each group. The notice stated it was anticipated the program
would be operational by January 1, 1981. Respondent also stated it
intended to staff bargaining unit revenue agent vacancies in these
groups in the following manner:
"1. Solicit volunteers from qualified revenue agents and
reassign from among those volunteers.
"2. If enough qualified volunteers are not available . . . use
MDA III Article 7 competitive procedures.
"3. If enough qualified revenue agents are not identified
through #1 and #2 above, the remaining positions in the groups
will be filled by reassignment."
The Union was invited to submit its proposals in writing by August
29, 1981 if it wished to negotiate the matter and was offered an
opportunity to be briefed on the subject.
By letter dated August 20, 1981 the Union requested negotiations on
the CTS program and on August 21 the Union received a briefing by IRS.
During this meeting the Union's representative, Frank Ferris, NTEU
Director of Negotiations, explained the Union's concerns relative to the
establishment of these groups including the manner of selecting
employees and their work locations. At this time IRS again notified
Ferris that the CTS groups were to be operational by January 31, 1981.
On August 29 the Union submitted a hand-written proposal on filling
CTS vacancies. The proposal stated, in relevant part:
"1. Vacancies in these groups will be filled as follows:
"a. The employer will solicit volunteer applications from
qualified revenue agents in all IRS offices. Solicitation will be
done by a vacancy announcement which details the specific
difference between this type of examination and normal examination
work, e.g. little or no corporate tax return work.
Unless the employer fills the vacancies with the most senior
applicants (IRS seniority) or chooses all who volunteer, it will
then use competitive contract procedures to select for the
vacancies.
Where not enough employees volunteer, the employer, if it
wishes to fill the remaining vacancies, will reassign the least
senior agent in that appointing office, unless there is just cause
not to do so.
* * *
"3. After two years in this group any employee who wishes to
be reassigned away from this work will be given every
consideration by management to reassign him/her to more acceptable
tasks.
"4. This agreement may be renegotiated any time after it has
been in effect for two years.
"5. Any provision of this agreement may be grieved under the
master contract . . . "
The Windfall Profit Tax Program
By letter dated June 19, 1980 IRS notified the Union of its intent to
implement a plan which would establish work groups in some parts of the
country for administering the Crude Oil, Windfall Profit Tax Act of 1980
(WPT). The letter indicated that examination of tax returns associated
with the program would begin on a nationwide basis between November 1980
and February 1981 although a limited number of returns would be examined
in the Southwest Region beginning in July 1980 by revenue agents who had
a background in the oil and gas industry. Detailed information on the
program was to be supplied to the Union around August 1, 1980.
Further notice was supplied NTEU when on August 29, 1980 IRS informed
the Union of its intention to establish "energy" groups which would
affect all regions with the major impact falling upon the Southwest and
Western regions. The ultimate decision as to whether a group would be
established to perform the work would rest with each individual region.
IRS stated it intended to select revenue agents for the WPT program by:
"1. Soliciting volunteers and giving them first consideration.
"2. Filling positions either by reassignment or competitive
procedures if enough qualified agents are not identified through
solicitation of volunteers."
In this communication the Union was advised that selected agents
would begin training sometime in October 1980 and it was anticipated
that WPT groups would be operational by February 1981. The Union was
also informed that if it wished to negotiate on the matter NTEU should
present written proposals to IRS by September 15, 1980, and IRS would be
available to brief the Union on the subject.
Representatives of the Union, including Ferris, and Respondent's
representatives met on September 11 at which time IRS briefed the Union
on the establishment of WPT groups and its desire to have the program
implemented immediately. Ferris stated that wished to submit proposals
on the matter and requested Respondent delay implementation until he did
so.
Subsequent Conduct Concerning Both Programs
On September 15, 1980 the Union submitted identical proposals
relative to staffing the CTS and WPT groups. The proposals used the
exact same language as the Union's August 29 hand-written proposal
relating to the formation of CTS groups, supra.
On September 17, 1980 IRS submitted its counter-proposals to the
Union. Respondent's proposals regarding the CTS program provide in
relevant part:
"1. Management intends to fill bargaining unit revenue
vacancies in these groups in the following manner:
"A. Solicit volunteers from qualified revenue agents and
reassign from among those volunteers.
"B. If enough qualified volunteers are not available,
Examination Division intends to use MDA III Article 7 competitive
procedures.
"C. If enough qualified revenue agents are not identified
through 1A and 1B above, the remaining positions in these groups
will be filled by reassignment.
* * *
"3. Since moving expenses will not be authorized, management
intends to solicit qualified volunteers for reassignment within
the immediate geographic vicinities of the nine (9) group
locations . . . "
As to the WPT program, Respondent's proposals stated, in relevant
part:
"1. Selection of revenue agents to examine WPT cases will be
made in the following manner:
"A. Solicit volunteers and give them first consideration.
"B. If enough qualified revenue agents are not identified
through solicitation of volunteers, positions will be filled
either by reassignment or competitive procedures.
* * *
"3. Solicitation of volunteers for reassignment will occur
district-wide for those locations where the WPT examination
workload has been identified. If applicable, moving expenses will
be provided in accordance with the Internal Revenue Manual . . . "
Both the CTS and WPT proposals offered by IRS contained the following
language:
"7. All provisions of this agreement are subject to the
current grievance procedures as are terms of regulations of the
Employer covering personnel policies, practices and matters
affecting work conditions, insofar as the subject matter of such
matters would be grievable under the Internal Revenue
administrative grievance procedure. (Note: upon the
implementation of a new consolidated contract the scope of the
grievance procedure contained therein will be precedent over the
above)."
On September 17, 1980 Ferris and Jack Ahern, a Labor Relations
Specialist for Respondent, discussed the proposals by telephone. Ferris
explained that NTEU's proposals were designed to give IRS a choice in
using seniority or competitive procedures to staff the CTS and WPT
groups. While indicating that the Union favored the use of seniority in
staffing the groups, Ferris acknowledged that he could not force IRS to
select seniority but could propose a choice consistent with a union
proposal which the Federal Labor Relations Authority previously found
negotiable in American Federation of Government Employees, AFL-CIO and
Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2
FLRA 604 (1980), at 610 (herein Wright-Patterson). /1/ Specifically,
Ferris explained that the Union's proposal covered two situations:
where there existed more volunteers than vacancies, IRS had the choice
of filling the positions beginning with the most senior volunteer or
using competitive procedures; where more vacancies than volunteers
existed, IRS could select beginning with the least senior qualified
employee to fill the remaining vacancies or fill the positions using
competitive procedures.
The parties again telephonically discussed the Union's proposals for
staffing the CTS and WPT groups on September 25, 1980. Ferris
represented the Union and Ahern and Susan Barlient, Respondent's Chief
of Collective Bargaining Section and Ahern's supervisor, represented
IRS. /2/ During the conversation Barlient informed Ferris that IRS
wished to move ahead "very soon" on the CTS and WPT programs and wanted
to make sure the parties were down to final positions. Barlient asked
Ferris to explain his proposals and Ferris indicated that he construed
his proposals as offering IRS a choice of procedures in selecting
employees for the CTS and WPT groups in line with the Authority's
decision in Wright-Patterson. Barlient remarked that she felt that the
Union's proposal mandated seniority and Ferris outlined his proposal as
he did to Ahern on September 17, supra. After further questioning by
Barlient, Ferris offered to make explicit that which he felt was
implicit in the proposal by specifically adding a sentence to the
proposal which would state that the choice between using seniority or
competition was the employers. Barlient eventually acknowledged that
she now realized the Union was not attempting to mandate seniority in
staffing the vacancies and told Ferris she would look into the entire
matter and talk with him on the following day.
The parties conversed again by telephone on September 26. Barlient
informed Ferris that IRS had to make a decision on that day as to the
procedure to use in filling the vacancies. She asked Ferris to explain
again the Union's proposal. Ferris went over the proposal much the same
as he did the previous day and Barlient responded that she felt the
proposal still mandated seniority which was unacceptable to IRS, and
accordingly the agency was going to declare the Union's proposal to be
nonnegotiable that day. Barlient further stated that a letter to that
effect would be delivered to the Union's Washington office immediately.
/3/ Ferris protested Barlient's reversing her position of the previous
day on the negotiability of the proposal and asked her how she could
call the Union's proposal nonnegotiable in light of the Wright-Patterson
decision. Barlient responded that as far as she was concerned
Wright-Patterson needed to be relitigated. Ferris informed Barlient
that he wanted his proposal to be "on the record" with IRS and even
though IRS was taking the position that the Union's proposal was
nonnegotiable he would hand deliver the proposal to her upon his return
to Washington on the following week.
On September 27, 1980 the Union received Respondent's written
position on the Union's proposals declaring the proposals nonnegotiable
in that they interfere with management's right to assign employees under
section 7106(a)(2)(A) of the Statute and to assign work under section
7106(a)(2)(B) of the Statute. IRS further informed the Union that
procedures for selection of employees for the two programs would be
implemented on September 29.
Ferris submitted on September 30, 1980 the proposals he had discussed
with IRS on September 26 and 27. The proposals provided, in relevant
part:
"Vacancies in these groups will be filled as follows:
"a. The employer will solicit volunteer applications from
qualified revenue agents in all IRS offices. Solicitation will be
done by a vacancy announcement which details the specific
differences between this type of examination and normal
examination work, e.g. little or no corporate tax return work.
Unless the employer fills the vacancies with the most senior
applicants (IRS seniority) or choose all who volunteer, it will
then use competitive contract procedures to select for the
vacancies. (Failure to fill the vacancies at this point will
permit the employer to then use alternate selection procedures.)
"b. Where not enough employees volunteer to fill the
vacancies, the employer, if it wishes to fill the remaining
vacancies, will reassign the least senior qualified employee in
the same appointing office as the vacancy to the position, or the
employer will automatically consider all qualified employees in
the same appointing office as the vacancy through the competitive
procedures of the contract (no applications are required). The
choice to use one or the other is the employers.
"c. The involuntary reassignment from one appointing office to
another will be used to fill these vacancies only as a last
resort, i.e. after all other procedures have been used . . . "
Selection of employees for work in the programs was in progress by
early to mid-October 1980.
On October 14, 1980 Ahern and Ferris discussed the staffing of the
CTS and WPT vacancies and Ahern proposed that in selecting volunteers
for these programs IRS would consider the seniority of volunteers.
Ferris rejected this proposal and Ahern notified Ferris that his
proposals of September 30 were unacceptable to the IRS. By letter to
Ferris dated November 26, 1980 IRS confirmed its position on the matter
per the October 14 discussion and indicated it was nevertheless willing
to meet and continue to discuss the subject.
In early November 1980 the Union filed two unfair labor practice
charges alleging Respondent refused to bargain concerning the programs.
Nevertheless, at Ahern's request the parties met again to discuss
proposals on the programs on December 19, 1980. During this meeting
Ahern acknowledged that IRS felt the Union's proposals of August 29 were
nonnegotiable, but it was Respondent's position that the Union's
proposals of September 30 which contained different wording, while
"unacceptable", were not being declared "nonnegotiable." Ahern pointed
to the language of Respondent's October 14 letter to the Union, supra,
which referred to the Union's proposal as "unacceptable" and indicated
IRS was still willing to negotiate on the matter. /4/ Ferris again
explained that the Union's proposals for staffing would operate the same
as that set out in Wright-Patterson, that is, management had the option
of staffing the vacancies using seniority or competitive procedures.
IRS presented the Union with its proposals which were similar to its
earlier proposals except the latest proposal specifically stated that
management would "give consideration to the most senior employees . . .
from among those volunteers determined to be qualified by management."
Ferris again rejected Respondent's proposal and Respondent again
rejected the Union's proposal and it became apparent to the parties that
resolution would require mediation.
On December 22, 1980 the Union withdrew the unfair labor practice
charges it filed in early November since Ferris now felt the parties
were bargaining on the matter. Immediately after withdrawing the unfair
labor practice charges Ferris invoked the services of the Federal
Mediation and Conciliation Service (FMCS).
The parties met before the FMSC on February 2, 1981. Although
negotiations continued, the parties were unable to reach agreement and
on February 5 Ferris requested the assistance of the Federal Service
Impasses Panel (FSIP or the Panel).
On March 25 and 26, 1981 the parties met in a prehearing conference
with a factfinder from the FSIP. During the conference the parties were
engaged in a dialogue clarifying their positions when it first became
apparent to IRS that the Union's proposals not only covered filling
unfilled vacancies but were to have retroactive effect regarding the
already filled positions and a prospective effect as to any vacancies in
the program which might occur in the future. /5/ Indeed, the Union
amended its proposals at the prehearing conference to expressly state
that their proposals would be applied retroactively as well as
prospectively in filling all vacancies in the programs. /6/ The parties
resolved some of their differences regarding the programs including
adopting the language of Respondent's proposals of September 15, 1980,
supra, relative to matters encompassed by any agreement concerning the
CTS and WPT programs would be subject to the "current grievance
procedures . . . (but) . . . upon implementation of a new consolidated
contract the scope of the grievance procedure contained therein will be
precedent over the above." /7/ However, the parties continued to reject
each others proposals on basic staffing procedures and Respondent
concluded that because the Union's prospective and retroactive
application concept expanded the impact of any staffing agreement, it
would rely on the staffing provisions of the newly negotiated NORD
contract which it felt was applicable to CTS and WPT staffing and
negated its obligation to bargain further on the matter. In any event,
an FSIP factfinding hearing was scheduled for April 7.
In a letter to the FSIP dated April 3, 1981, a copy of which was
received by the Union, Respondent set forth its position that the
Union's amended proposals of September 30, 1980, supra, were not
negotiable. Respondent stated that the Union's proposals conflicted
with the terms of MDA III and the NORD agreements and averred that in
implementing the CTS and WPT programs, "the newly created positions were
filled in accordance with prescribed management rights and the
negotiated procedures of the master agreements (MDA III, NORD)."
Respondent concluded that since a negotiability question existed the
parties were not at a negotiation impasse and the issue therefore was
not properly within the jurisdiction of the FSIP. Accordingly,
Respondent advised it would not appear at the April 7 factfinding
hearing.
On April 6, 1981 Respondent filed with the FSIP a Motion to
Continue/Adjourn Factfinding Hearing. In its motion Respondent
explained that it had no further obligation to negotiate with the Union
on the matters at issue since they were already covered under a recently
negotiated master agreement with the union and a negotiation impasse
under the Statute did not exist. The motion was denied by the Panel.
Respondent made an appearance at the April 7, 1981 factfinding
hearing for the purpose of contesting the FSIP's jurisdiction over the
matter beyond which it declined to appear or participate in the hearing.
The Factfinder proceeded with an ex parte hearing after which he
declined to resolve the impasse and recommended that the negotiability
issue presented by Respondent be resolved" in an appropriate forum." On
August 10, 1981 the FSIP adopted the Factfinder's recommendation.
Issues
The General Counsel contends that Respondent refused to bargain in
good faith in violation of section 7116(a)(1) and (5) of the Statute
when it asserted on April 3, 1981 that no bargaining obligation existed
relative to procedures for staffing the CTS and WPT programs.
The Union takes the position that not only did Respondent violate the
Statute as alleged by the General Counsel, but IRS also engaged in
violations when in September 1980 it declared the Union's original
proposal's nonnegotiable and proceeded to begin unilaterally staffing
the CTS and WPT programs in October 1980. However, such latter
contentions were neither alleged in the Complaint nor urged by Counsel
for the General Counsel at the hearing. Therefore, I do not consider
such allegations to be properly before me and accordingly make no
findings or conclusions with regard thereto.
Respondent contends it bargained in good faith and that in March 1981
and thereafter it had no obligation to bargain with the Union on its CTS
and WPT proposals in that procedures for filling vacancies in such
situations were fully set forth in the NORD agreement of January 1981.
Respondent reasons that any obligation to bargain was extinguished after
the Union entered into that agreement, much the same as a waiver of a
bargaining right might occur. While acknowledging it did not raise this
defense to negotiations between execution of the NORD agreement and its
first meeting with the FSIP, essentially Respondent explains that the
Union's adding retroactive and prospective application of its proposals
before the Factfinder expanded the impact of the proposals to such a
significant degree that Respondent was no longer willing to forego its
rights under the NORD agreement. Further, Respondent now contends,
raising this defense for the first time shortly before this hearing
commenced, that the Union's proposals directly interfere with
management's rights under section 7106 of the Statute to assign
employees to positions and assign work, and therefore are not
negotiable. /8/
Discussion
I find and conclude that Respondent refused to negotiate in good
faith in violation of section 7116(a)(1) and (5) of the Statute when, on
April 3, 1981, it clearly conveyed to the Union that it had no
obligation to bargain on the Union's staffing proposals relative to the
CTS and WPT programs and thereafter failed to negotiate or allow FSIP
resolution.
The threshold question is whether the Union's proposals were
negotiable under section 7106 of the Statute since if the proposals were
not negotiable IRS would be privileged to refuse to bargain with the
Union on April 3 even after having negotiated with the Union prior
thereto. /9/ As found above, after IRS declared the Union's first set
of proposals to be nonnegotiable under section 7106 of the Statute, the
Union revised its proposals to conform to the proposal dealing with
selection procedures in Wright-Patterson which the Authority found to be
negotiable. That case held, inter alia, that a proposal which provided
the agency with discretion is filling certain vacancies either by
competitive procedures outlined in the parties agreement or by seniority
did not directly interfere with the agency's basic right to assign
employees under section 7106(a)(2)(A) of the Statute and was therefore
negotiable. /10/ Although IRS representatives at first had some
difficulty in perceiving any discretion in the Union's revised
proposals, Ferris fully explained how he interpreted the proposals and
intended the choice to operate.
Ferris' wording in the proposals did not exactly tract that found in
Wright-Patterson and could be interpreted in a variety of ways including
compelling seniority selection before going to competitive procedures.
However, Ferris' repeated explanation committed the Union to an
interpretation which gave Respondent a choice of selection either by
seniority or competitive procedures in the first instance and, by
December 19, 1980 Respondent's representatives' apprehensions were
dispelled. Ferris testified that the language in section 1B of his
proposals that "The choice to use one or the other is the employers,"
supra, also applied to section 1A and such was clearly conveyed to
Respondent. /11/ Regardless of the wording, the intent of the proposals
was that the choice applicable in Wright-Patterson was applicable to the
Union's proposals and at all times material Respondent was aware it had
that choice. Indeed, Respondent did not raise its negotiability
argument until shortly before the hearing in this case.
In its brief Respondent acknowledges that the Authority would require
an agency to negotiate a proposal that would provide management a choice
between competitive selection procedures or the use of seniority.
However, Respondent avers that the Union's proposals herein did not meet
the Wright-Patterson "choice" standard of negotiability because they are
so time consuming and administratively unfeasible that no actual
alternative exists other than selection by seniority. If the Union's
selection procedures as set forth in Section 1A and 1B of its proposals
were followed, the combination of procedures would take several months
to complete, which, Respondent asserts, would exceed twice the time IRS
took to complete the process. Respondent's contention is premised on an
explanation of the Union's proposal given by Ferris before the FSIP
Factfinder on April 7, 1981, supra. Ferris stated that the Union's
proposals would require all volunteers be first ranked by seniority and
management would then have to consider selecting employees for vacancies
on that basis. However, if management wished to pass over any employee
or deviate from that list it could proceed to select on the basis of
competitive procedures. If vacancies still existed, the employer could
then involuntarily reassign the least senior employees at the location
where the vacancies existed or involuntarily reassign employees to the
vacancies based upon competitive procedures. /12/ Thus, in following
the Union's proposals, substantial time would be required to compile the
seniority list, consider placement from that list and then engage in
competitive procedures perhaps twice.
In sum, Respondent contends that to staff the program following the
Union's proposals, other than by seniority, would result in inordinate
administrative burdens resulting in a substantial delay in
implementation which would materially diminish the effectiveness of the
programs. Thus, Respondent avers the Union's proposals, in reality,
left no viable choice for staffing other than filling the vacancies by
seniority. Additionally, Respondent's desire to avoid such delay was
based upon its attempt to comply with "congressional interest" in the
timely implementation of the programs and to avoid enforcement problems
occasioned by the running of the governing statutes of limitations.
/13/
In the circumstances herein, I find the Union's CTS and WPT proposals
provided Respondent with a choice of selection procedures within the
meaning of the Authority's decision in Wright-Patterson and accordingly,
are negotiable under section 7106 of the Statute.
The cumulative staffing procedures espoused by the Union would
doubtlessly require substantially more time to fill the positions than
management's proposal. Indeed, adopting the Union's proposals to fill
the positions might be so time consuming, onerous or otherwise
administratively undesirable that if the matter were placed before the
FSIP, the Panel would reject the Union's proposals. /14/ But, if it
preferred, Respondent could choose to select employees for the vacancies
without utilizing the entire procedure set out in the Union's proposals.
Moreover, a substantial delay in implementing a program will not
necessarily result in the Authority declaring a proposal nonnegotiable.
/15/ It is well settled that the statutory standard in deciding the
negotiability of a proposal is not whether the union's proposal would
result in an undesirable or unreasonable delay so as to negate the
exercise of a management right. Rather, the standard is whether
adoption of the proposal will "prevent the agency from acting at all."
/16/
I find that the Union's proposals presented IRS with a choice of
procedures allowing IRS to staff the programs from alternative sources.
/17/ Accordingly, in these circumstances I conclude that the Union's
proposals were negotiable under section 7106 of the statute and I reject
Respondent's arguments with regard thereto. /18/
Respondent's contention that its conduct did not show other than
"good faith" bargaining as defined in section 7114(b) of the Statute is
without merit. One of the requirements of section 7114(b)(2) is " . . .
to discuss and negotiate on any condition of employment." By its conduct
in refusing to bargain with the Union after the matter proceeded to the
FSIP, I conclude Respondent failed to comply with its obligation to
discuss and negotiate on a matter herein found to be a negotiable
condition of employment. Further, specific evidence of an intent by
Respondent to evade or frustrate its bargaining obligation is not
required since intent is not an element of a section 7116(a)(5)
violation in situations such as that presented herein. /19/
I further reject Respondent's contention that the terms of the NORD
agreement govern the matter at issue herein and by executing the NORD
agreement the Union waived its right to continue negotiations on the
procedures for staffing the CTS and WPT programs.
At the hearing Respondent offered testimony that provisions contained
in the NORD agreement would apply to the procedures used in selecting
employees when staffing programs such as the CTS and WPT programs.
However, under MDA III, the predecessor agreement between the parties,
the parties had a practice of periodically negotiating over
reassignments or similar personnel actions to accommodate employees who
were being affected by a reorganization. Respondent contends that its
change of position regarding negotiating with the Union was based upon a
consolidation of bargaining units preceding the NORD agreement. /20/
According to Respondent, under MDA III each district office constituted
a separate bargaining unit but under NORD only one overall unit was
recognized. Accordingly, Respondent contends that after the NORD
agreement came into effect its terms controlled the staffing of the CTS
and WPT positions and management's actions in staffing those positions
complied with the terms of that agreement. Thus, Respondent's argument
in effect suggests that by the execution of the NORD agreement the Union
waived its right to pursue negotiations on staffing the CTS and WPT
positions, an accepted practice under MDA III.
It has been long and continuously held that a waiver can be
established only by clear and unmistakable conduct. /21/ In the case
herein no such "clear and unmistakable" conduct has been shown to occur.
Thus, the negotiations on staffing began in September 1980 and the
parties recognized during the December 22, 1980 discussion, that
intervention by the Federal Mediation and Conciliation Service would be
required. The services of the FMCS were invoked immediately after the
December 22 discussion and the parties proceeded to mediation on
February 2, 1981 and then to impasse proceedings on March 26. At no
time to this point did either the Union or Respondent by its conduct
indicate other than a desire to resolve their dispute following the
practice established under MDA III, i.e. negotiation. Neither the
language of the NORD agreement executed January 26, 1981, nor testimony
relating to discussions giving rise to the NORD agreement nor at any
other time, indicate that the dispute concerning the CTS and WPT
programs was to be governed by NORD.
Further, Respondent's proposals submitted on September 17, 1980 and
unmodified thereafter, except to the extent that IRS committed itself to
"give consideration" to seniority of those volunteering for the
programs, contained language that provisions of the proposals would be
governed by the then current grievance procedures noting that " . . .
upon implementation of a new consolidated contract the scope of the
grievance procedure contained therein will be precedent over the above
(proposals)." Thus, even though a consolidated collective bargaining
agreement was envisioned and IRS made explicit provision that the terms
of the grievance procedure therein would apply, IRS did not make similar
provision with regard to the precedence of the staffing provisions of
the new agreement over those contained in MDA III.
Accordingly, I conclude in all the circumstances that the execution
of the NORD agreement did not constitute a waiver of the Union's right
to negotiate to finality under MDA III the staffing procedures to be
used vis a vis the CTS and WPT programs.
Remedy
The Union requests that all prior personnel actions taken with regard
to staffing the CTS and WPT programs be declared a nullity and that any
staffing proceed in accordance with whatever agreement is reached during
future bargaining between the parties. /22/ Thus, the Union suggests
that after the parties negotiate on the matter to finality, i.e.
agreement or imposition of a resolution by the FSIP, the terms of the
final outcome be applied retroactively.
In my opinion an order directing retroactive application as the Union
seeks would be inappropriate. The Union's proposals sought specific
retroactive application of the CTS and WPT programs. By ordering
retroactivity as part of the remedy I would essentially be imposing a
term of a proposal on IRS, a matter I am not disposed to do on the facts
herein.
Moreover, in this particular case it is entirely possible that the
parties will eventually find themselves before the FSIP for resolution
of a bargaining impasse. In that event the FSIP would appropriately
consider such a proposal and an order herein requiring retroactive
application would limit the requisite flexibility and impair the broad
range of options the FSIP necessarily requires to execute its statutory
functions. Accordingly, the Union's request for retroactive application
is denied.
The Union also contends it is entitled to an award of costs and
attorney's fees incurred in connection with the litigation of this case.
The Union asserts authority for an award exists under section 7105,
(Powers and Duties of the Authority), and section 7118, (Prevention of
Unfair Labor Practices), of the Statute, and under the Equal Access to
Justice Act, (EAJA) 5 U.S.C. 504.
Without passing upon whether an award of costs and attorney's fees is
permissable under the Statute, /23/ I conclude such an extraordinary
remedy is not required in the circumstances of this case, noting
particularly the ambiguities contained in the Union's written proposals
of September 30, 1980, and the Union's conduct in subsequently modifying
its proposals before the FSIP.
With regard to the Union's request for an award under the EAJA, that
statute and the Authority's implementing regulations /24/ indicate that
the award provisions under the EAJA are available only to a respondent,
other than the United States, who prevails against the General Counsel
in an unfair labor practice proceeding. Therefore, the Union, as a
charging party is not entitled to an award under the EAJA and its
request is denied.
Accordingly, in view of the entire foregoing and having concluded
that Respondent has violated section 7116(a)(1) and (5) of the Statute,
I recommend the Authority issue the following:
Order
Pursuant to section 2423.20 of the Federal Labor Relations
Authority's 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 in good faith with
National Treasury Employees Union, the employees' exclusive
collective bargaining representative, by declaring nonnegotiable
the proposals made by National Treasury Employees Union on March
26, 1981, as explained to the Federal Service Impasses Panel on
April 7, 1981 by Frank Ferris, National Treasury Employees Union's
Director of Negotiations, concerning staffing the Commodity Tax
Shelter and Windfall Profits Tax programs.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of 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) Upon request of National Treasury Employees Union, the
employees' exclusive collective bargaining representative,
negotiate, to the extent consonant with law and regulations,
concerning staffing of the Commodity Tax Shelter and Windfall
Profit Tax programs.
(b) Post at its National Office, Regional Offices and District
Offices 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 Commissioner,
Internal Revenue Service, and shall be posted and maintained by
him for 60 consecutive days thereafter, in conspicuous places,
including bulletin boards and all 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) Pursuant to section 2423.30 of the Federal Labor Relations
Authority's Rules and Regulations, notify the Regional Director of
Region 3, Federal Labor Relations Authority, 1111 18th Street,
NW., Suite 700, Washington, D.C. 20036, in writing within 30 days
from the date of the Order as to what steps have been taken to
comply herewith.
/s/ Salvatore J. Arrigo
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: March 5, 1982
Washington, D.C.
APPENDIX
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 in good faith with National
Treasury Employees Union, the employees' exclusive bargaining
representative, by declaring nonnegotiable the proposals made by
National Treasury Employees Union on March 26, 1981, as explained to the
Federal Service Impasses Panel on April 7, 1981 by Frank Ferris,
National Treasury Employees Union Director of Negotiations, concerning
staffing the Commodity Tax Shelter and Windfall Profit Tax programs.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce any 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,
negotiate to the extent consonant with law and regulations, concerning
staffing of the Commodity Tax Shelter and Windfall Profit Tax programs.
(Agency of 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, Federal Labor Relations Authority, Region 3, 1111
18th Street, NW., Suite 700, Washington, D.C. 20036 and whose telephone
number is (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ The Wright-Patterson proposal referred to was Union Proposal III
which stated:
" . . . Unless the employer decides to use competitive
procedures as outlined in Article . . . (Promotions), temporary
assignment to higher or same grade/different duty positions shall
be offered to qualified and available employees with requisite
skills on the basis of seniority within the lowest organizational
segment. If senior employees decline and it is necessary to
detail an employee, the least senior employee shall be assigned."
/2/ The version of what occurred during this conversation and that of
September 26 is taken primarily from the testimony of Ferris. While
Ahern's version was substantially in accord with Ferris' in material
matters, Ferris' presentation was more direct and thorough. Further,
although Barlient testified in this proceeding, no testimony was
elicited from her relative to these conversations.
/3/ During the above telephone conversations Ferris was away from the
Union's Washington, D.C. office at a training conference in Minnesota.
/4/ Indeed, at all times thereafter Ahern considered the Union's
modified proposals to be negotiable.
/5/ By the time of the prehearing conference there were approximately
117 employees assigned to the CTS program and 335 employees asked to the
WPT program. Around 25 vacancies still remained to be filled on March
26. Positions were filled in both programs through vacancy
announcements and competition, soliciting volunteers, and involuntary
reassignments.
/6/ Ferris acknowledged that at the prehearing conference he changed
his proposals to include retroactivity but assumed that the prospective
application of the original proposals was obvious.
/7/ In fact, a "new consolidated contract" was arrived at between the
parties, said agreement taking effect on January 26, 1981. The contract
covered Respondent's National Office, Regions and Districts (referred to
herein as the NORD agreement) and replaced the Multi-District Agreement
(referred to herein as MDA III).
/8/ Section 7106 provides, in relevant part:
"(a) . . . nothing in this chapter shall affect the authority
of any management official of any agency . . . to . . . assign . .
. employees in the agency . . . (or) . . . to assign work . . . "
/9/ See remarks of Rep. Ford at 124 Cong.Rec. H9646 (daily ed. Sept.
13, 1978) relative to management's bargaining obligations under the
final version of section 7106(b)(1) which deals with matters negotiable
at the election of an agency, wherein Rep. Ford stated:
"I might say that not only are (agencies) under no obligation
to bargain, but in fact they can start bargaining and change their
minds and decide they do not want to talk about it any more, and
pull it off the table. It is completely within the control of the
agency to begin discussing the matter or terminate the discussion
at any point they wish without a conclusion, and there is no
appeal or reaction possible from the parties on the other side of
the table."
/10/ Wright-Patterson, supra, at 612-614.
/11/ At no time did Respondent suggest that Ferris' proposals were
ambiguous and should be reworded.
/12/ Competitive procedures involve ranking employees from the most
qualified to the least qualified based upon the performance evaluations
of all employees in the appointing office. If an employee did not have
a current evaluation on file at the time, one would have to be prepared
by management.
/13/ The WPT program had a three year statute of limitations on
assessment.
/14/ See e.g. Department of the Treasury, U.S. Customs Service,
Washington, D.C. and National Treasury Employees Union, 81 FSIP 126,
Panel Release No. 197 (1981), timing of performance appraisals;
Department of Commerce, Maritime Administration, U.S. Merchant Marine
Academy, Kings Point, New York and Local 3732, American Federation of
Government Employees, AFL-CIO, 81 FSIP 77, Panel Release No. 197 (1981),
time allocated for negotiations; and Veterans Administration Regional
Office, Houston, Texas and Local 1454, National Federation of Federal
Employees, 81 FSIP 12, Panel Release No. 178 (1981), site of
negotiations.
/15/ National Treasury Employees Union and U.S. Customs Service,
Region VIII, San Francisco, California, 2 FLRA 255 (1979).
/16/ American Federation of Government Employees, AFL-CIO, Local 1999
and Army-Air Force Exchange Service, Dix - McGuire Exchange, Fort Dix,
New Jersey, 2 FLRA 153 (1979); National Treasury Employees Union and
U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA 255
(1979); and Wright-Patterson, supra, at 623-626.
/17/ Cf. National Treasury Employees Union and Department of the
Treasury, Internal Revenue Service, 6 FLRA No. 97 (1981); American
Federation of Government Employees, AFL-CIO, Local 909 and Department of
the Army, Headquarters, Military Traffic Management Command, Washington,
D.C., 6 FLRA No. 96 (1981); and American Federation of Government
Employees, AFL-CIO, Local 2792 and Department of Commerce, Bureau of the
Census, Washington, D.C., 6 FLRA No. 56 (1981).
/18/ Cf. Department of the Air Force, U.S. Air Force Academy, 6 FLRA
No. 100 (1981).
/19/ Cf. Department of the Treasury, Internal Revenue Service and IRS
Richmond District Office, 3 FLRA 18 (1980) and see also Division of
Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA
158 at 172-173 (1982).
/20/ Internal Revenue Service, Washington, D.C. and National Treasury
Employees Union, 7 A/SLMR 497 (1977).
/21/ Department of the Air Force, U.S. Air Force Academy, 6 FLRA No.
100 (1981); Department of the Air Force, Scott Air Force Base,
Illinois, 5 FLRA No. 2 (1981); Department of the Treasury, Internal
Revenue Service, Cleveland, Ohio, 3 FLRA 656 (1980), absence of
reference in agreement does not support a waiver; Department of the
Treasury, Bureau of Alcohol, Tobacco and Firearms, 6 FLRC 784 (1978), 8
A/SLMR 551, neither express terms of agreement nor discussions during
negotiations established a waiver; U.S. Department of the Treasury
Internal Revenue Service, New Orleans District, 6 A/SLMR 497 (1978)
absent an express contractual provision, at least some discussion
necessary to establish a waiver of a past practice; and NASA, Kennedy
Space Center, Florida, 2 A/SLMR 566 (1972).
/22/ Counsel for the General Counsel does not join in this request.
/23/ Case law developed under the National Labor Relations Act, 29
U.S.C. 157, strongly suggests that awarding costs and attorney's fees is
within the Authority's broad statutory remedial powers. National Labor
Relations Board v. Food Store Employees Union, Local 347, etc. 417 U.S.
1, 94 S.Ct. 2074 (1974) and International Union of Electrical, Radio and
Machine Workers, AFL-CIO and National Labor Relations Board et al., 502
F.2d 349 (1974), known as the Tidee Products case.
/24/ 5 CFR 2430 et seq., Interim Rules and Regulations, Fed. Reg.,
Vol. 46, No. 191, October 2, 1981.