[ v17 p731 ]
17:0731(103)CA
The decision of the Authority follows:
17 FLRA No. 103
INTERNAL REVENUE SERVICE
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-20156
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practice alleged in the complaint and recommending that
it be ordered to cease and desist therefrom and to take certain
affirmative action. Thereafter, the Respondent filed exceptions to the
Judge's Decision and a supporting brief, and the Charging Party filed an
opposition to the Respondent's exceptions. Each of the following
organizations filed an amicus curiae brief: The Office of Personnel
Management (OPM); the Department of Agriculture (DA); the Department
of Health and Human Services (HHS); the Department of the Interior
(DOI); and the Department of Energy (DOE). /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 recommended Order,
as modified herein.
The complaint alleges that the Respondent violated section 7116(a)(1)
and (5) of the Statute by refusing to negotiate concerning proposals
submitted by the Charging Party during the term of existing collective
bargaining agreements which were not related to any changes initiated by
the Respondent. The Judge found that the Respondent violated the
Statute as alleged in the complaint, concluding that the duty to bargain
in good faith imposed upon agencies by the Statute includes the
requirement to bargain over proposals initiated by a union during the
term of an existing collective bargaining agreement concerning subjects
not specifically waived by the union during negotiations or included in
the existing agreement. The Judge supported this latter conclusion by
relying upon precedent under the National Labor Relations Act, most
especially the case of Jacobs Manufacturing Company, 94 NLRB 1214
(1951), enf'd, 196 F.2d 680 (2d Cir. 1952). The Authority does not
agree.
The issue here presented is whether there exists an obligation under
the Statute to bargain over proposals initiated by a union during the
term of an agreement which are unrelated to management-initiated changes
in conditions of employment. The findings and purpose of the Statute
are set forth in section 7101. /2/ In that section, Congress stated
that the statutory protection of the right of employees to bargain
collectively safeguards the public interest, contributes to the
effective conduct of public business, and facilitates and encourages the
amicable settlements of disputes between employees and their employers
involving conditions of employment. Congress therefore concluded that
collective bargaining in the civil service is in the public interest.
/3/ At the same time, Congress also noted in that section that the
provisions of the Statute should be interpreted in a manner which is
consistent with the requirement of an effective and efficient Federal
Government. In order to understand the extent of the right to bargain
collectively in the context of the requirement of an effective and
efficient Government, it will be necessary to address the meaning of
collective bargaining and the rights and obligations associated
therewith.
Collective bargaining is defined in section 7103(a)(12) of the
Statute as follows:
Sec. 7103. Definitions; application
(a) For the purpose of this chapter--
. . . .
(12) "collective bargaining" means the performance of the
mutual obligation of the representative of an agency and the
exclusive representative of employees in an appropriate unit in
the agency to meet at reasonable times and to consult and bargain
in a good-faith effort to reach agreement with respect to the
conditions of employment affecting such employees and to execute,
if requested by either party, a written document incorporating any
collective bargaining agreement reached, but the obligation
referred to in this paragraph does not compel either party to
agree to a proposal or to make a concession(.)
The rights and obligations of parties to engage in collective bargaining
under the Statute are set forth in section 7114. Of significance here
are the following provisions of this section:
Sec. 7114. Representation rights and duties
(a)(1) A labor organization which has been accorded exclusive
recognition is the exclusive representative of the employees in
the unit it represents and is entitled to act for, and negotiate
collective bargaining agreements. . . .
. . . .
(4) Any agency and any exclusive representative in any
appropriate unit in the agency, through appropriate
representatives, shall meet and negotiate in good faith for the
purposes of arriving at a collective bargaining agreement. . . .
. . . .
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation--
(1) to approach the negotiations with a sincere resolve to
reach a collective bargaining agreement;
. . . .
(5) if agreement is reached, to execute on the request of any
party to the negotiation a written document embodying the agreed
terms, and to take such steps as are necessary to implement such
agreement.
It is apparent from the specific language of these provisions of the
Statute that a labor organization which is an exclusive representative
of employees in an appropriate unit and the agency in which the
employees are employed have a mutual obligation to negotiate in good
faith in an effort to reach a collective bargaining agreement with
respect to conditions of employment affecting employees in the unit.
When these provisions of the Statute are read in conjunction with the
Statute's findings and purpose as set forth in section 7101, it is clear
that a goal of collective bargaining is to facilitate and encourage the
amicable settlement of disputes between employees and their employer
concerning conditions of employment and that this can best be achieved
by the negotiation of collective bargaining agreements as appropriate
under applicable law. Thus, stability at the work place with respect to
employees' conditions of employment can be attained by the fulfillment
of the mutual obligation of the parties to bargain in good faith in an
effort to reach a collective bargaining agreement. Moreover, to the
extent that the parties are required to adhere to the specific
conditions of employment mutually established in their agreement during
the life of such agreement, stability at the work place is thereby
fostered. /4/ While Congress found collective bargaining in the public
interest, in so doing, Congress further expressed an intent to limit the
bargaining obligation over union-initiated proposals to situations where
parties are negotiating a basic collective bargaining agreement. In
this regard, the Senate Committee on Governmental Affairs, in explaining
section 7215(a)(1) /5/ of the Bill (S. 2640), which is substantially
identical to the language contained in section 7114(a)(1) of the
Statute, supra, stated as follows: /6/
The parties have a mutual duty to bargain not only with respect
to those changes in established personnel policies proposed by
management, but also concerning negotiable proposals initiated by
either the agency or the exclusive representative in the context
of negotiations leading to a basic collective bargaining
agreement.
Thus, by this statement, Congress intended that where parties are
negotiating a basic collective bargaining agreement, the bargaining
obligation shall exist with respect to negotiable proposals initiated by
either agency management or the exclusive representative. However,
outside this context, Congress intended the bargaining obligation to
exist only with respect to changes in established conditions of
employment proposed by management. /7/ This distinction indicates that
other than negotiations leading to a basic collective bargaining
agreement, there is no obligation to bargain over union-initiated
proposals.
Moreover, as previously noted, various provisions of the Statute
emphasize the importance of negotiating collective bargaining agreements
for the purpose of facilitating and encouraging the amicable settlement
of disputes concerning conditions of employment in an effort generally
to promote stability at the work place. Were the Authority to now hold
that there is a statutory obligation for agency management to bargain at
any time during the life of a collective bargaining agreement over
union-initiated proposals which are unrelated to changes initiated by
agency management, the ability of the parties to rely upon such basic
agreements as a stable foundation for their day-to-day relations would
be diminished. Parties would be discouraged from engaging in the
effort, as part of negotiation of their basic collective bargaining
agreement, to foresee potential labor-management relations issues, and
resolve those issues in as comprehensive a manner as practicable.
Instead, such a holding would encourage dispersal of the collective
bargaining process. It is difficult to envision that Congress, with its
interest in the achievement of effective and efficient Government
through collective bargaining and the execution of collective bargaining
agreements, intended to provide such a disincentive to bargaining for a
contract and such an incentive to continuous bargaining on an
issue-by-issue basis. Such an approach to bargaining would inject
uncertainty into the parties' relationship, enhance the prospect for
protracted conflict, and could lead to the continuous expenditure of
resources for both management and exclusive representatives.
This is not to say, of course, that all bargaining would be precluded
during the term of an agreement. Thus, for example, where management
seeks to alter an established condition of employment in a manner which
is not precluded by the agreement, it is obligated to notify the
exclusive representative and afford the latter an opportunity to bargain
either over the substance of the change to the extent that it may be
within the scope of bargaining or its impact and implementation. See,
e.g., Social Security Administration, Mid-America Service Center, Kansas
City, Missouri, 9 FLRA 229 (1982) and Department of the Air Force, Scott
Air Force Base, Illinois, 5 FLRA 9 (1981). Additionally, where parties
have negotiated a reopener provision in their agreement, timely
negotiable proposals submitted in connection and consistent therewith
are subject to the mutual obligation to bargain. See generally,
Department of the Treasury, Internal Revenue Service and National
Treasury Employees Union, 7 FLRA 610 (1982) and American Federation of
Government Employees, AFL-CIO, Local 2494 and Strategic Weapons Facility
Pacific, Bremerton, Washington, 7 FLRA 590 n.2 (1982). And, of course,
management retains the authority to exercise its rights under section
7106(a) of the Statute subject to bargaining with the exclusive
representative under section 7106(b)(2) and (3). See Social Security
Administration, 8 FLRA 517 (1982).
Turning to the instant case, the record indicates that the parties
entered into collective bargaining agreements covering the two units
involved herein on January 26, 1981. On July 29, 1981, six months
later, the Charging Party submitted its bargaining proposals and
demanded negotiations. Based on the above, the Authority concludes that
there was no obligation to bargain over these union-initiated proposals
and that the Respondent's failure to do so does not constitute a
violation of section 7116(a)(1) and (5) of the Statute, as alleged.
Accordingly, the Authority shall order that the complaint be dismissed
in its entirety.
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-20156 be, and it
hereby is, dismissed.
Issued, Washington, D.C., April 24, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 3-CA-20156
Richard J. Mihelcic, Esquire
Edward Lee Patton, Esquire
For the Respondent
Patricia Eanet Dratch, Esquire
For the General Counsel
Mr. Thomas Spangler
Joseph V. Kaplan, Esquire
For the Charging Party
Before: BURTON S. STERNBURG, 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.Section 7101, et seq., and the Rules and Regulations issued
thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980 and Vol. 46,
No. 154, August 11, 1981, 5 C.F.R.Chapter XIV, Part 2411, et seq.
Pursuant to a charge filed on November 27, 1981, by the National
Treasury Employees Union (hereinafter called the Union or NTEU), a
Complaint and Notice of Hearing was issued on February 26, 1982, 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 or Act), by virtue of its
actions in refusing to negotiate over mid-term proposals submitted by
the Union which were not related to any changes in personnel policies or
practices, or general conditions of employment initiated by Respondent.
A hearing was held in the captioned matter on April 15, 1982, 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. The parties submitted post
hearing briefs on May 17, 1982, 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, the charging party herein, is the exclusive representative
of various units of employees working for the IRS in its National
Office, regions, districts, service centers, Detroit Data Center and
National Computer Center.
The Union and the IRS are parties to two separate collective
bargaining agreements covering the aforementioned IRS employees who are
represented by the Union. The NORD agreement applies to the employees
working in the National Office, regions and districts. The Service
Center Agreement is applicable to the IRS service centers, Detroit Data
Center and the National Computer Center. Both agreements were effective
January 26, 1981.
Article 39, Section C of the NORD Agreement and Article 38, Section C
of the Service Center Agreement set forth the ground rules for
mid-contract negotiations of "Employer" sponsored "proposed changes in
the conditions of bargaining unit employees employment". Neither
contract contains any provision for Union sponsored changes in
conditions of employment, nor do they make any reference, whatsoever, to
mid-term proposals of the Union with respect to subjects not encompassed
in such collective bargaining agreements. In this latter context, Mr.
Irvin Des Roches, the Chief negotiator for the IRS since 1969, in the
matter of collective bargaining agreements, testified that the parties
always had the understanding while they were negotiating the NORD and
Service Center Agreements and the parties similar predecessor agreements
that they were negotiating for the life of such agreements "except for
changes". In support of his position, Mr. Des Roches relied upon
Article 39 and Article 38, respectively of the NORD and Service Center
Agreements. Mr. Des Roches further acknowledged that he had been
unsuccessful on behalf of the IRS in obtaining "a written waiver from
the Union that gave up any and all rights during the life of the
(collective bargaining) agreement". In this latter connection, Mr.
Frank Ferris, Director of Negotiations for NTEU since 1979, who
admittedly was not at all the negotiating sessions leading up to the
current NORD and Service Center Agreements, denied that the Union had
ever waived its right to "enter into bargaining during the term of the
agreement".
On July 29, 1981, the Union sent a letter to the Respondent wherein
it requested negotiations on nine proposals dealing with conditions of
employment. The nine proposals dealt with Government Cars, Employee
Investigations, Legislative Salary Check Off, Professional Difference of
Opinion, Fitness For Duty, Work at Home, Emergency Suspensions,
Administrative Holidays, and Geographic Selection of Work Site. /8/
The Union's proposals contained in the July 29, 1981, letter to
Respondent read in pertinent part as follows:
GOVERNMENT CARS
The Employer will make available to any union official who is to be
engaged in the use of official time a government car as long as a
government car is already in use at the employee's posts-of-duty for
other official matters.
EMPLOYEE INVESTIGATIONS
In no case will any employee who is the subject of an investigation
by management (including Inspection) that could reasonably lead to
discipline be required to answer any question put to him or her. No
adverse consequences of any kind, e.g., supervisory harassment, will
befall the employee for his/her refusal to answer.
LEGISLATIVE SALARY CHECK OFF
During the first full pay period in April and October of each year an
employee may have deducted from his/her salary an amount of money
designated by the employee. This money will be sent by IRS to NTEU no
later than the end of the next full pay period.
FITNESS FOR DUTY
In no case will an employee be forced to be physically or mentally
examined in a "fitness for duty" examination by the government chosen
doctor unless he/she so chooses.
If the employee does not want to use a government designated doctor
he/she need only submit a list of three doctors from which the employer
will choose the doctor to do the examination.
WORK AT HOME
Because of the benefits that can flow from employees working at their
homes, the employer will immediately begin a one year experiment to test
the feasibility of the premise.
The test will include Revenue Agents, Revenue Officers, Tax Auditors,
Revenue Representatives, and others in like positions.
The employees will be permitted to do work at home that would
otherwise be done in the office, but without public contact.
At the completion of the test either party can reopen negotiations on
this subject.
GEOGRAPHIC SELECTION OF WORK SITES
Effective and enlightened personnel management practices call for
permitting employees to choose when they will do their assigned duties.
Consequently, the parties agree to give employees more freedom on this
matter by implementing the following:
When opportunities arise which call for employees to
temporarily perform their assigned duties outside their normal
duty station, e.g., at a taxpayer's place of business, these
temporary assignments will be offered to qualified and available
employees with requisite skills on the basis of seniority. If
there are no volunteers these assignments will be rotated among
qualified and available employees with requisite skills in inverse
order of seniority. These procedures are limited to situations
which would not require a position change of an employee, and they
do not require an assignment in the absence of work.
By letter dated September 23, 1981, Respondent acknowledged the
Union's letter and noted that inasmuch as no changes had been effected
in the areas of the proposals, the Respondent was under no obligation
"to negotiate over the Union's proposals at this time". Respondent
further informed the Union that "the proposals could be the subject of
discussions when the NORD and Center Agreements may be renegotiated in
1985, or, of course, if the Service actually does make a change on these
issues before then".
By letter dated October 8, 1981, the Union acknowledged receipt of
Respondent's September 23, 1981 letter, and informed the Respondent that
it, the Union, had a right, independent of changes, to request
bargaining at any reasonable time as may be necessary.
On November 12, 1981, the Respondent sent a letter to the Union
wherein it stated in pertinent part as follows:
. . . it is the Services' position that we have no obligation
to negotiate over mid-term proposals initiated by NTEU that do not
directly relate to management initiated changes in personnel
policies or practices, or general conditions of employment. Since
the proposals submitted on July 29, 1981, do not relate to any
management initiated changes, we are under no obligation to
negotiate over them.
The record further indicates that during the negotiations leading up
to the current collective bargaining agreements, the Union submitted
proposals dealing with (1) allowing Field Revenue Officers and Revenue
Agents to spend one duty hour per day at home to prepare reports and
make telephone calls, (2) the right of employees to have representatives
at inspection interviews which the employee reasonably believes may
result in disciplinary action, /9/ (3) allowing Union Stewards, Chapter
Presidents or grievants to receive necessary administrative time, travel
and per diem in connection with grievances, formal discussions, etc.,
and (4) payment for medical certificates and physicals in connection
with fitness for duty examinations.
Mr. Irvin Des Roches, the Chief Negotiator for the IRS, and
Respondent's sole witness, testified that while union check-offs and
terminations were discussed during the negotiations there were no
discussions or negotiations concerning legislative checkoffs.
Other than indicating that the Union had submitted the proposals set
forth above during the negotiations, Mr. Des Roches did not go into any
detail concerning what transpired with respect to such proposals during
the negotiations, nor did he give any reasons for the non-inclusion of
the Union's proposals in the current NORD and Service Center Agreements.
With respect to the Union's proposal concerning the use of Government
Cars, Mr. Des Roches acknowledged that the subject was not specifically
broached during the negotiations dealing with per diem pay, etc. to
union stewards.
Both Mr. Frank Ferris, Director of Negotiations for the NTEU, who
attended many of the pre-contract negotiations, and Mr. Des Roches
acknowledged that physical examinations were only discussed in
connection with such examinations for pregnant employees.
As to the proposal dealing with Geographic Selection of Work Sites,
Mr. Des Roches testified that such subject was only discussed in
connection with the negotiation concerning employees working at home.
Article 17, Section 2 and Article 40 of the NORD Agreement, and
Article 16, Section 2 and Article 39 of the Service Center Agreement
contain provisions dealing with dues check-off and maternity leave
examinations in connection with fitness for duty. The maternity leave
provision makes no mention of the employee's right to select her own
doctor, and the check-off provision is limited to union dues.
Discussion and Conclusions
Respondent takes the position that, in the absence of employer
initiated changes, it is under no obligation to bargain over mid-term
proposals concerning working conditions, etc., submitted by the Union.
In the alternative, Respondent takes the position that it is under no
obligation to bargain over any subjects which were discussed, or could
have been discussed, during the contract negotiations leading up to the
NORD and Service Center Agreements.
The General Counsel and the Union, on the other hand, take the
position that the Respondent is obligated to bargain over the mid-term
proposals submitted by the Union and that the Union did not waive its
rights to bargain over the six mid-term proposals during the
negotiations leading up to the current collective bargaining agreements.
In support of its position with respect to mid-term bargaining, the
Union and the General Counsel rely for the most part on two Circuit
Court decisions in the private sector, i.e., Jacobs Manufacturing v.
NLRB, 196 F.2d 680 and NL Industries v. NLRB 536, F.2d 786, wherein the
Courts concluded that in the absence of a waiver, an employer has the
duty and obligation to bargain with respect to subjects which were
neither discussed nor embodied in any of the terms of an existing
collective bargaining contract. With regard to the waiver issue, the
General Counsel and the Union take the position that the record falls
short of establishing that the six mid-term proposals were fully
discussed during pre-contract negotiations to the extent that the Union
consciously and unequivocally waived its right to future bargaining on
such subjects.
Respondent acknowledges the private sector law but takes the position
that a different conclusion should be reached in the public sector since
the industrial strife occasioned by strikes and lockouts which mid-term
bargaining is designed to prevent, is not present in the public sector.
In this context, while it is true that the Court in Jacobs
Manufacturing, supra, did allude to the fact that the absence of
mid-term bargaining in the private sector might lead to industrial
strife occasioned by strikes and lockouts, it did not base its decision
with respect to the necessity for mid-term bargaining solely on that
factor. The main issue before the court in Jacobs, supra, was the
impact of Section 8(d) /10/ on mid-term bargaining. As noted above, the
Court, citing the precise language of the Statute, concluded that an
employer was obligated to enter mid-term bargaining with respect to
proposals encompassing terms and conditions of employment which were
neither discussed nor encompassed in the collective bargaining
agreement.
Neither a review of the legislative history nor a literal reading of
the Federal Services Labor-Management Relations Statute compels a
different conclusion with respect to mid-term bargaining than that
currently existing in the private sector. Moreover, to hold otherwise,
would give a distinct advantage to agencies, since only they would be
free to initiate mid-term changes in conditions of employment. Giving
such an advantage to employers would run counter to the intent of
Congress which sought to put agencies and unions on an equal footing in
the matter of collective bargaining. To insure such equal footing,
Congress went so far as to authorize payment of travel and per diem
expenses as well as utilization of official time for employees
representing exclusive representatives in both basic and mid-term
collective bargaining. See, Interpretation and Guidance, 2 FLRA No. 31;
Bureau of Alcohol, Tobacco and Firearms, Western Region, Dept. of
Treasury, San Francisco, U.S. Ct of Appeals, (9th circuit), BNA, Govt.
Employees Relations Reporter, No. 958, April 12, 1982, pg. 37.
Further, contrary to the position of the Respondent, I do not believe
that the full scope grievance procedure mandated by the Statute provides
an effective substitute for mid-term bargaining. Such grievance
procedures are generally only applicable to interpretation and
enforcement of existing terms and conditions of employment and make no
provision for proposals dealing with the institution of new terms or
conditions of employment.
Finally, with respect to Respondent's position concerning the absence
of an obligation to bargain over a union's mid-term bargaining proposal,
I do not agree that the Assistant Secretary's decision in Army and Air
Force Exchange Region Headquarters, Case No. 22-6657(CA), Ruling on
Requests for Review, Case No. 779, holds that there is no mandatory
obligation on an activity to bargain over a union's mid-term bargaining
proposals. While it is true that the Acting Regional Administrator did
make such a statement in his letter dismissing the Complaint, the
Assistant Secretary, however, affirmed the Acting Regional
Administrator's dismissal on the sole ground that the agency had indeed
bargained on the mid-term proposal.
Having concluded that the Respondent is obligated to bargain over
mid-term bargaining proposals submitted by a union, the sole question
remaining for resolution is whether the Union in the instant case waived
its rights during the negotiations leading up to the current NORD and
Service Center Agreements to bargain over the six mid-term proposals
submitted on July 29, 1981.
It is well established that a waiver will be found only if it can be
shown that the exclusive representative clearly and unmistakably waived
its statutory right to negotiate on the proposals in dispute.
Department of the Air Force, U.S. Air Force Academy & AFGE, AFL-CIO,
Local 1867, 6 FLRA No. 100; Department of the Air Force, Scott Air
Force Base, Illinois & NAGE, Local R7-23, 5 FLRA No. 2. The withdrawal
of a contract proposal or failure to pursue a demand in contract
negotiations does not constitute a waiver. IRS, Jacksonville, Florida
Service Center, 1 FLRA No. 35; IRS Fresno Service Center, A/SLMR No.
1119; NASA Kennedy Space Center, Florida, A/SLMR No. 223; Beacon
Journal Publishing Co., 164 NLRB 734; The Press Co., Inc., 121 NLRB
976, 178.
Applying the above established principles of law to the record
evidence herein, I cannot find that the Union expressly waived its
rights with respect to mid-term bargaining on the six proposals under
consideration herein. Thus, I find, contrary to the testimony of Mr.
Des Roches, that Article 39 and Article 38, of the NORD and Service
Center Agreements, respectively, are not what are generally referred to
as "zipper clauses", wherein a union relinquishes all rights to
bargaining on all subjects for the term of the agreement. This
conclusion is supported by Mr. Des Roches' admission that he had been
unsuccessful in obtaining "a written waiver from the Union that gave up
any and all rights during the life of the (collective bargaining)
agreement".
Accordingly, if the Respondent is to succeed in its waiver argument,
it must be established that the six proposals were fully discussed
during the negotiations leading up to the NORD and Service Center
Agreements and that the Union consciously and unequivocally waived its
rights to future bargaining thereon. Contrary to the contention of the
Respondent, I can not find that the record supports such a conclusion.
The record falls short of establishing that parties did in fact
discuss the Union's proposals dealing with Government Cars, Legislative
Salary Check Off, Fitness for Duty, Work at Home, Geographic Selection
of Work Sites and the employee's right to remain silent at all
interviews or investigations that could lead to discipline. In fact,
Mr. Des Roches acknowledged that there were no discussions concerning
legislative checkoff or the use of government cars. Similarly, Mr. Des
Roches' testimony with regard to the proposals dealing with Work at Home
and Geographic Selection of Work Sites indicates that the only
discussion of such subjects occurred with respect to the pre-contract
proposal dealing with the right of certain employees to work one hour in
the morning at their respective homes making telephone calls and
preparing reports. Inasmuch as it is apparent that there is no
relationship between the two proposals and the proposal discussed during
the pre-contract negotiations, I can not conclude that such proposals
were fully discussed and that the Union consciously and unequivocally
waived its rights to future bargaining thereon.
With respect to the Union's proposals dealing with (1) the employees'
right to remain silent during investigations, etc., which could lead to
discipline and (2) fitness for duty examinations, the record reveals
that such proposals were also not fully discussed during the
negotiations leading up to the current NORD and Service Center
Agreements. Thus, Mr. Des Roches acknowledged that the only discussions
concerning fitness for duty involved maternity situations and not other
situations where physicals would be required. Additionally, the
existing contracts only refer to the payment for such physicals and not
the selection of a doctor to perform such physicals.
Although Mr. Des Roches contended that the proposal dealing with
silence during investigations was substantially the same as the Union's
pre-contract proposal, a review of both documents indicates that the
pre-contract proposal dealt solely with inspection investigations while
the mid-term proposals dealt with all investigations and/or interviews
which could lead to disciplinary action.
Accordingly, I find insufficient basis for concluding that the
Union's mid-term proposals dealing with silence during investigations
and fitness for duty were fully discussed during pre-contract
negotiations and that the Union consciously and unequivocally waived its
rights to future bargaining thereon during the term of the existing
collective bargaining agreements.
Moreover, it is noted that the record, other than the testimony of
Mr. Des Roches, which in the main merely identified the proposals
submitted by the Union during the pre-contract negotiations and
indicated that there had been some discussions thereon, is void of any
evidence setting forth the details of any such discussions. In such
circumstances, it is impossible to establish, as contended by the
Respondent, that a waiver did occur. In fact, on the basis of the
record evidence, the only thing that can be concluded, is that the Union
submitted proposals which for some unexplained reasons were not included
in the subsequent contracts.
As noted above, the withdrawal of a contract proposal or failure to
pursue a demand in contract negotiations does not constitute a waiver.
The vice in reaching a contrary conclusion is eloquently set forth by
the NLRB in The Press Co. Inc., supra, wherein the Board stated as
follows:
To hold that, without regard to the nature of precontract
negotiations, the mere discussion of a subject not specifically
covered in the resulting contract removes the matter from the
realm of collective bargaining during the contract term would be
to place a premium (a) upon an employer's ability to avoid having
the subject included in the contract, despite his knowledge of the
union's position that it was a bargainable matter and not within
his unilateral control; and (b) upon the union's ability to have
the subject specifically referred to in the contract by engaging--
if necessary-- in a strike. Such a doctrine would inevitably
result in increasing the area of potential conflict in the
interests of the parties at the bargaining table. Thus, the union
would feel constrained to refrain from raising questions on which
it feared agreement might not be reached lest it be held to have
bargained away its interest therein. However, unless the union
was possessed of some special prescience, its estimate of the
employer's position on certain important matters might well be
erroneous and these would remain unresolved, possibly to plague
the parties during the contract term. On the other hand, the
employer would be encouraged to raise all conceivable issues and
then to resist their inclusion in the contract, in order to retain
the right of unilateral action; this, in turn, would require
that, once a subject was mentioned, the union take an adamant
position in insisting upon its inclusion. But many of the
questions thus raised might otherwise never have been in issue if
the parties were permitted to await the events giving rise to
their importance. By encouraging the union to seek an inadequate
agreement or requiring inclusion in the agreement of all these
matters, many of which might be only of contingent significance at
the time of negotiation, a needless impediment would be placed in
the way of successful collective bargaining.
Upon the basis of the above analysis and conclusions I find that the
Respondent violated Sections 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute by virtue of its actions in refusing
to negotiate over the mid-term proposals submitted by the Union on July
29, 1981.
Accordingly, I recommend that the Authority issue the following Order
designed to effectuate the purposes and policies of the Statute.
ORDER
Pursuant to Section 7118(a)(7)(A) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C.Section 7118(a)(7)(A), and
Section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section
2423.29(b)(1), the Authority hereby orders that the Internal Revenue
Service shall:
1. Cease and desist from:
(a) Refusing to enter into mid-term bargaining negotiations
with the National Treasury Employees Union as the exclusive
representative of its employees in appropriate units.
(b) In any like or related manner, interfering with,
restraining or coercing unit employees represented by the National
Treasury Employees Union, in the exercise of their rights assured
by the Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, bargain collectively with the National
Treasury Employees Union with respect to its proposals concerning
Government Cars, Employee Investigations, Legislative Salary
Check-Off, Fitness for Duty, Work at Home and Geographic Selection
of Work Sites, or other terms or conditions of employment that are
not already referred to in, or covered by, the terms of an
existing collective bargaining agreement.
(b) Post at its offices covered by the NORD and Service Center
Agreements 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 Deputy
Commissioner of the Internal Revenue Service and they shall be
posted for 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily
posted. The Deputy Commissioner shall take reasonable steps to
insure that such notices are not altered, defaced, or covered by
any other material.
(c) Notify the 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.
BURTON S. STERNBURG
Administrative Law Judge
Dated: June 15, 1982
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
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to enter into mid-term bargaining negotiations with
the National Treasury Employees Union as the exclusive representative of
our employees in appropriate units. WE WILL NOT in any like or related
manner, interfere with, restrain or coerce unit employees represented by
the National Treasury Employees Union, in the exercise of their rights
assured by the Statute. WE WILL upon request, bargain collectively with
the National Treasury Employees Union with respect to its proposals
concerning Government Cars, Employee Investigations, Legislative Salary
Check-Off, Fitness for Duty Examinations, Work at Home and Geographic
Selection of Work Sites, or other terms or conditions of employment that
are not already referred to in, or covered by, the terms of an existing
collective bargaining agreement.
(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
questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director of
the Federal Labor Relations Authority, Region 3, whose address is: 1111
18th Street, N.W., Washington, D.C., 20036, and whose telephone number
is: (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ These agencies were granted permission to participate in this
proceeding pursuant to section 2429.9 of the Authority's Rules and
Regulations.
/2/ Section 7101 provides in relevant part as follows:
Sec. 7101. Findings and purpose
(a) The Congress finds that--
(1) experience in both private and public employment indicates
that the statutory protection of the right of employees to
organize, bargain collectively, and participate through labor
organizations of their own choosing in decisions which affect
them--
(A) safeguards the public interest,
(B) contributes to the effective conduct of public business,
and
(C) facilitates and encourages the amicable settlements of
disputes between employees and their employers involving
conditions of employment; and
. . . .
Therefore, labor organizations and collective bargaining in the
civil service are in the public interest.
(b) It is the purpose of this chapter to prescribe certain
rights and obligations of the employees of the Federal Government
and to establish procedures which are designed to meet the special
requirements and needs of the Government. The provisions of this
chapter should be interpreted in a manner consistent with the
requirement of an effective and efficient Government.
/3/ See, in this connection, Department of Defense v. Federal Labor
Relations Authority, 685 F.2d 641, 644 (D.C. Cir. 1982) and Department
of Defense, Army-Air Force Exchange Service v. Federal Labor Relations
Authority, 659 F.2d 1140, 1145 (D.C. Cir. 1981).
/4/ See, e.g., Federal Aviation Administration, Northwest Mountain
Region, Seattle, Washington, 14 FLRA 644 (1984), in which the Authority
determined in part that where parties have elected to negotiate over
"permissive" subjects of bargaining, i.e., those matters which are
excepted from the obligation to bargain under section 7106(b)(1) of the
Statute or those matters which are outside the required scope of
bargaining under the Statute, stability in Federal labor-management
relations can be achieved by requiring the parties to adhere to those
terms during the life of the agreement.
/5/ Section 7215(a)(1) of the Senate Bill provided:
Sec. 7215 Representation rights and duties
(a) If a labor organization has been accorded exclusive
recognition, such organization shall be--
(1) the exclusive representative of employees in the unit and
is entitled to act for and negotiate agreements covering all
employees in the unit.
/6/ S. Rep. No. 95-969, 95th Cong. 2d Sess. 40 (1978), reprinted in
Legislative History of the Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of 1978, at 764
(1979).
/7/ The Senate Report as cited at note 6, supra, also stated:
"(w)here agency management proposes to change established personnel
policies, the exclusive representative must be given notice of the
proposed changes and an opportunity to negotiate over such proposals to
the extent they are negotiable". This statement is consistent with the
precedent under the Statute's predecessor, Executive Order 11491, as
amended. In this regard, case law under the Executive Order ". . .
require(d) adequate notice and an opportunity to negotiate prior to
changing established personnel policies and practices and matters
affecting working conditions during the term of an existing agreement
unless the issues thus raised (were) controlled by current contractual
commitments, or a clear and unmistakable waiver (was) present." See the
1975 Report and Recommendations of the Federal Labor Relations Council
(to the President) on the Amendment of Executive Order 11491, as
Amended, Labor-Management Relations in the Federal Service (1975), at
41. Moreover, it had never been established under the Executive Order
that there was any obligation to bargain over union initiated mid-term
proposals. Rather, in Army and Air Force Exchange Service, Capitol
Exchange Region Headquarters, Case No. 22-6657(CA), 2 Rulings on Request
for Review 561 (1976), the Assistant Secretary of Labor for
Labor-Management Relations adopted the dismissal of a complaint which
alleged that agency management had violated its duty to bargain in good
faith by refusing to negotiate concerning the union's mid-contract
proposal that it be granted the use of an employee breakroom to conduct
a union membership drive. The complaint had been dismissed below in
part on the basis that the Executive Order "does not impose any
mandatory obligation on an Activity to bargain over changes proposed or
requested by the Union during the term of the contract and does not give
the exclusive representative any right to demand such bargaining." (Id.
at 562) In adopting the dismissal, the Assistant Secretary noted among
other things that "the parties' negotiated agreement provides for union
membership drives, although the use of agency facilities for such
purposes is not specifically outlined therein." Accordingly, an
obligation to negotiate union initiated mid-term bargaining proposals
did not exist under the Executive Order. The legislative history of the
Statute evinces an intent on the part of Congress to continue this
policy.
/8/ Although the charge originally relied upon Respondent's refusal
to negotiate over the nine proposals, during the course of the hearing
the General Counsel made it clear that for reasons not set forth in the
record, it was withdrawing any allegations of the Complaint predicated
on the proposals dealing with Emergency Suspensions, Administrative
Holidays and Professional Difference of Opinion.
/9/ The Union's five-page proposal also contained language allowing
the employee to remain silent at the inspection interview, but made the
employee subject to removal if the employee failed to answer material
and relevant questions pertaining to performance of his job duties.
/10/ Section 8(d) of the Taft Hartley Act, provided in pertinent part
that the duty to bargain collectively ". . . shall not be construed as
requiring either party to discuss or agree to any modification of the
terms and conditions contained in a contract for a fixed period. . . ."