Internal Revenue Service and IRS Richmond District Office (Respondent) and National Treasury Employees Union and NTEU Chapter 48 (Complainant) 



[ v02 p333 ]
02:0333(43)CA
The decision of the Authority follows:


 2 FLRA No. 43
 
 INTERNAL REVENUE SERVICE
 AND IRS RICHMOND DISTRICT OFFICE
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU CHAPTER 48
 Complainant
 
                                            Assistant Secretary
                                            Case No. 22-09462(CA)
 
                            DECISION AND ORDER
 
    ON MAY 14, 1979, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
 FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
 PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT
 BE DISMISSED IN ITS ENTIRETY.  THEREAFTER, THE COMPLAINANT FILED TIMELY
 EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
 ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 NO. 2 OF 1978(43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS IMPLEMENTED
 BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS(44 F.R.
 44741, JULY 30, 1979).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
 THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE(92 STAT. 1215).
 THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
 REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
 AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE
 HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE,
 INCLUDING THE COMPLAINANT'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE
 ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION.
 /1/
 
                                 ORDER /2/
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 22-09462(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 31, 1979
 
                        RONALD W. HAUGHTON, MEMBER
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    GEORGE R. BELL, ESQUIRE
 
    STAFF ASSISTANT TO REGIONAL COUNSEL
 
    INTERNAL REVENUE SERVICE
 
    2 PENN CENTER PLAZA
 
    PHILADELPHIA, PENNSYLVANIA 19120
 
                            FOR THE RESPONDENT
 
    MICHAEL MAUER, ESQUIRE
 
    ALAN S. HERSH, ESQUIRE
 
    ASSISTANT COUNSELS
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    1730 K STREET, NW
 
    WASHINGTON, D.C. 20006
 
                            FOR THE COMPLAINANT
 
    BEFORE:  BURTON S. STERNBURG
 
    ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A COMPLAINT FILED ON SEPTEMBER 27, 1978, UNDER EXECUTIVE
 ORDER 11491, AS AMENDED, BY NATIONAL TREASURY EMPLOYEES UNION AND NTEU
 CHAPTER 48, (HEREINAFTER CALLED THE UNION OR COMPLAINANT), AGAINST
 INTERNAL REVENUE SERVICE AND IRS RICHMOND DISTRICT OFFICE, (HEREINAFTER
 CALLED THE RESPONDENT OR ACTIVITY), A NOTICE OF HEARING ON COMPLAINT WAS
 ISSUED BY THE REGIONAL ADMINISTRATOR FOR THE PHILADELPHIA, PENNSYLVANIA
 REGION ON DECEMBER 29, 1978.
 
    THE COMPLAINT ALLEGES IN SUBSTANCE THAT THE RESPONDENT VIOLATED
 SECTIONS 19(A)(1), (2) AND (6) OF THE ORDER BY UNILATERALLY TAKING
 CERTAIN ACTIONS CONCERNING THE HIRING, LAY-OFF AND RECALL OF
 "INTERMITTENT EMPLOYEES" WITHOUT NOTIFYING THE UNION AND AFFORDING IT AN
 OPPORTUNITY TO BARGAIN OVER THE IMPACT AND IMPLEMENTATION OF SUCH
 ACTIONS.
 
    A HEARING WAS HELD IN THE CAPTIONED MATTER ON FEBRUARY 22 AND 23,
 1979, IN WASHINGTON, D.C.  ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO
 BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE
 EVIDENCE BEARING THEREON.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT AND
 CONCLUSIONS.
 
                             FINDINGS OF FACT
 
    THE UNION IS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF THE EMPLOYEES
 WORKING IN RESPONDENT'S RICHMOND, VIRGINIA DISTRICT OFFICE AND A PARTY
 TO "MULTI DISTRICT AGREEMENT NUMBER THREE" COVERING SOME 57 IRS
 DISTRICTS THROUGHOUT THE UNITED STATES.  THE RICHMOND DISTRICT OFFICE
 INCLUDES FIVE POSTS OF DUTY THROUGHOUT THE STATE OF VIRGINIA, NAMELY,
 HAMPTON, STAUNTON, BAILEYS CROSSROADS, NORFOLK AND RICHMOND.
 
    THE INSTANT DISPUTE CONCERNS THE EMPLOYEES WORKING IN THE TAXPAYER
 SERVICE DIVISION OF THE RICHMOND DISTRICT OFFICE.  THESE EMPLOYEES ARE
 CLASSIFIED AS TAXPAYER SERVICE REPRESENTATIVES (TSR) AND ARE INVOLVED,
 AMONG OTHER THINGS, IN ANSWERING THE VARIOUS INQUIRIES SUBMITTED BY
 TAXPAYERS.  PRIOR TO THE JANUARY-APRIL 15, 1978 TAX FILING SEASON
 RESPONDENT UTILIZED ONLY TWO TYPES OF TSR EMPLOYEES, PERMANENT AND WAES
 IN THE TAXPAYER SERVICE DIVISION OF THE RICHMOND DISTRICT OFFICE.  THE
 PERMANENT EMPLOYEES WERE, OF COURSE, YEAR ROUND WORKERS WHILE THE WAES
 (WHEN ACTUALLY EMPLOYED) WERE OF A TEMPORARY NATURE.  MOREOVER, THE WAES
 WERE ONLY UTILIZED DURING PEAK SEASONS WHEN IT WAS ANTICIPATED THAT THE
 PERMANENT EMPLOYEES WOULD NOT BE ABLE TO HANDLE THE DAILY OR WEEKLY
 WORKLOAD.  AS A GENERAL RULE THE WAES WOULD PARTICIPATE IN AN EIGHT TO
 TEN WEEK TRAINING PROGRAM DURING THE PERIOD AUGUST-DECEMBER AND THEN BE
 CALLED IN FOR SCHEDULED TOURS OF DUTY DURING THE JANUARY-APRIL 15TH TAX
 SEASON.  THE TOURS OF DUTY COULD BE EITHER WEEKS OR DAYS.  HOWEVER, ONCE
 A WAE REPORTED FOR A SCHEDULED TOUR OF DUTY, RESPONDENT WAS OBLIGATED TO
 PAY THE WAE FOR THE SCHEDULED TOUR IRRESPECTIVE OF THE FACT THAT THE
 ANTICIPATED WORKLOAD FAILED TO MATERIALIZE.  THE RECORD INDICATES THAT
 IN THE PAST THE WAES WORKED A FULL WEEKLY SCHEDULE FROM JANUARY-APRIL
 15TH, THE LAST FILING DAY OF THE TAX SEASON.  THEREAFTER, A NUMBER OF
 THE WAES WOULD BE FURLOUGHED AND THE REMAINDER WOULD BE CALLED IN FOR
 SPORADIC PRE-SCHEDULED TOURS OF DUTY.  THE SCHEDULING OF THE TOURS OF
 DUTY WOULD NORMALLY BE DONE IN THE WEEK PRECEDING THE SCHEDULED TOUR OF
 DUTY DUE TO THE FACT THAT IT WAS NECESSARY TO CUT PERSONNEL ACTIONS FOR
 EACH WAE WHO WAS ASSIGNED A TOUR OF DUTY.  DUE TO THE TIME ELEMENT
 INVOLVED, THE FACT THAT IT WAS DIFFICULT TO ANTICIPATE WITH ANY DEGREE
 OF CERTAINTY THE FORTHCOMING WORKLOAD IN FUTURE WEEKS AND THE FACT THAT
 WAES WERE ENTITLED TO BE PAID FOR THE ENTIRE SCHEDULED TOUR OF DUTY EVEN
 THOUGH THE ANTICIPATED WORK DID NOT MATERIALIZE, RESPONDENT IN THE
 SPRING OF 1977 DECIDED FOR THE FIRST TIME TO USE A THIRD CATEGORY OF
 EMPLOYEE AS A TSR IN THE RICHMOND DISTRICT.  THIS NEW TYPE OF EMPLOYEE
 WAS CALLED AN "INTERMITTENT EMPLOYEE".
 
    THE "INTERMITTENT EMPLOYEE" WAS TO UNDERGO THE SAME TRAINING AND
 PERFORM THE SAME DUTIES AS THE WAE EMPLOYEES WHO WERE EMPLOYED AS TAX
 SERVICE REPRESENTATIVES.  UNLIKE THE WAE, HOWEVER, THE INTERMITTENTS DID
 NOT HAVE TO HAVE PERSONNEL ACTIONS CUT AND WERE NOT TO BE PAID FOR A
 FULL TOUR OF DUTY IF THE ANTICIPATED WORK DID NOT MATERIALIZE AND
 RESPONDENT DECIDED TO SEND THEM HOME PRIOR TO THE COMPLETION OF A
 SCHEDULED TOUR OF DUTY.  ALSO, THE INTERMITTENTS, UNLIKE THE WAES, WOULD
 NOT EARN ANNUAL AND SICK LEAVE FOR TIME WORKED.  /3/
 
    ON APRIL 15, 1977, MR. NORMAN SULZER, CHIEF OF THE TAXPAYER SERVICE
 DIVISION MET WITH MS. SANDRA WEST, THE UNION STEWARD FOR THE RICHMOND
 TAX SERVICE DIVISION POST OF DUTY, AND INFORMED HER OF RESPONDENT'S
 INTENTION TO HIRE INTERMITTENT EMPLOYEES IN RICHMOND AND OTHER TAXPAYERS
 SERVICE DIVISION OFFICES THROUGHOUT THE STATE OF VIRGINIA.  MR. SULZER
 EXPLAINED THE DIFFERENCE BETWEEN AN INTERMITTENT AND A WAE, THE REASONS
 FOR THE CONTEMPLATED ACTION AND THE FLEXIBILITY THAT THIS TYPE OF
 EMPLOYEE WOULD ALLOW THE RESPONDENT.  /4/
 
    ON APRIL 26, 1977, RESPONDENT POSTED AND ISSUED A POSITION
 DESCRIPTION FOR "WAE/INTERMITTENT.  GS-962-4/5/6, TAXPAYER SERVICE
 DIVISION".  AN AMENDMENT TO THE POSITION DESCRIPTION WAS POSTED ON APRIL
 29, 1977.  ACCORDING TO THE ANNOUNCEMENT, WHICH WAS POSTED ON SOME 30
 BULLETIN BOARDS JOINTLY USED BY THE RESPONDENT AND THE UNION THROUGHOUT
 THE RICHMOND DISTRICT, /5/ THE "WORK SCHEDULES (OF THE
 WAE/INTERMITTENTS) WILL DEPEND ON THE VOLUME OF TAXPAYER NEEDS." THE
 ANNOUNCEMENT FURTHER STATED:
 
    USUALLY, TAXPAYER SERVICE REPRESENTATIVES WILL WORK EVERY WEEK DURING
 THE JANUARY TO APRIL
 
    PERIOD.  DURING THE REMAINDER OF THE YEAR THEY WILL BE UTILIZED ON AS
 NEEDED BASIS.
 
    ON MAY 13, 1977, DURING THE COURSE OF A MEETING WITH THE EMPLOYEES AT
 THE NORFOLK, VIRGINIA POST OF DUTY, MR. SULZER WAS QUESTIONED BY MS.
 MCGINTY, THE NORFOLK UNION STEWARD, CONCERNING THE HIRING OF
 INTERMITTENT EMPLOYEES AND HOW THEY WOULD BE USED.
 
    ON AUGUST 23, 1977, RESPONDENT HIRED A NUMBER OF INTERMITTENT
 EMPLOYEES.  THE NEWLY HIRED INTERMITTENTS, ALONG WITH A NUMBER OF NEW OR
 RETURNING WAE EMPLOYEES, WERE GIVEN ONE WEEK OF ORIENTATION AND THEN
 ASSIGNED TO PHASE I TRAINING FOR FOUR WEEKS, COMMENCING ON AUGUST 29 AND
 TERMINATING ON SEPTEMBER 23, 1977.  ON OCTOBER 31 TO NOVEMBER 16, 1977,
 THE GROUP RETURNED FOR PHASE 2 TRAINING.  ON NOVEMBER 28 THROUGH
 NOVEMBER 30TH THE EMPLOYEES RETURNED FOR OJT.  A REFRESHER COURSE WAS
 HELD ON DECEMBER 6 AND 7TH, 1977.  ON OR ABOUT JANUARY 1, 1978, THE
 INTERMITTENTS, ALONG WITH THE WAES BEGAN WORKING A FULL SCHEDULE AS
 TAXPAYER SERVICE REPRESENTATIVES.  /6/
 
    ON JANUARY 10, 1978, A LABOR-MANAGEMENT RELATIONS COMMITTEE /7/
 MEETING WAS HELD FOR PURPOSES OF DISCUSSING AN AGENDA SUBMITTED BY THE
 UNION TO THE RESPONDENT ON DECEMBER 19, 1977.  DURING THE COURSE OF THE
 MEETING THE UNION, FOR THE FIRST TIME, RAISED THE ISSUE OF RESPONDENT'S
 USE OF INTERMITTENT EMPLOYEES IN LIEU OF WAE EMPLOYEES FOR TSR WORK.
 RESPONDENT, IN RESPONSE TO THE UNION'S QUESTIONS, EXPLAINED THE
 DIFFERENCE BETWEEN A WAE AND AN INTERMITTENT, THE REASONS FOR THE
 ESTABLISHMENT OF THE INTERMITTENT CLASSIFICATION AND THE MANNER IN WHICH
 RESPONDENT INTENDED TO USE THE INTERMITTENT AND WAES.
 
    ON JANUARY 20, 1978, ACTING CHIEF STEWARD BAILEY, PURSUANT TO
 AUTHORIZATION FROM THE PRESIDENT OF NTEU, CHAPTER 48, SENT A LETTER TO
 THE RESPONDENT WHEREIN RESPONDENT WAS REQUESTED.
 
    . . . TO NEGOTIATE THE SUBSTANCE, IMPACT AND IMPLEMENTATION ON WAE
 EMPLOYEES WHEN
 
    INTERMITTENT EMPLOYEES ARE RECALLED IN LIEU OF WAE EMPLOYEES AND ALSO
 TO NEGOTIATE OVER THE
 
    IMPACT AND IMPLEMENTATION OF WORK OF INTERMITTENT EMPLOYEES, PURSUANT
 TO EXECUTIVE ORDER
 
    11491.
 
    ON JANUARY 25, 1978, RESPONDENT ACKNOWLEDGED MR. BAILEY'S LETTER AND
 REQUESTED MORE SPECIFIC INFORMATION CONCERNING "THE NATURE OF YOUR
 CONCERNS AND YOUR PROPOSALS TO CORRECT SAME IN ORDER THAT WE MAY MAKE AN
 INFORMED RESPONSE TO THIS REQUEST".
 
    ON APRIL 14, 1978, RESPONDENT RECEIVED A MEMORANDUM FROM ACTING
 STEWARD BAILEY WHEREIN IT WAS REQUESTED THAT THE UNION BE ADVISED OF THE
 PROPOSALS, PLANS, INTENTION AND GOALS FOR THE FURLOUGH AND RECALL OF WAE
 AND INTERMITTENT EMPLOYEES.
 
    ALSO, ON FRIDAY, APRIL 14, 1978, RESPONDENT ISSUED THE WORK SCHEDULES
 FOR THE FOLLOWING WEEK.  THESE WORK SCHEDULES INDICATED THAT FOR THE
 FIRST TIME IN 1978 ALL WAE AND INTERMITTENT EMPLOYEES WOULD NOT BE
 EMPLOYED FOR THE ENTIRE WEEK.  AS THE AFOREMENTIONED SCHEDULE FURTHER
 INDICATED THAT SOME OF THE INTERMITTENT EMPLOYEES WERE BEING SCHEDULED
 FOR WORK WHILE SOME OF THE WAE EMPLOYEES WERE BEING FURLOUGHED, ACTING
 CHIEF STEWARD BAILEY FILED A FORMAL PROTEST WHICH WAS RECEIVED BY THE
 RESPONDENT ON APRIL 18, 1978.
 
    ON APRIL 20, 1978, RESPONDENT RECEIVED SEPARATE LETTERS FROM ACTING
 CHIEF STEWARD BAILEY AND NTEU ASSISTANT COUNSEL HERSH REQUESTING
 NEGOTIATIONS ON IMPACT AND IMPLEMENTATION.  BOTH LETTERS WHICH MADE
 REFERENCE TO THE UNION'S JANUARY 20TH REQUEST FOR NEGOTIATIONS AND THE
 RESPONDENT'S RESPONSE THERETO INCLUDED PROPOSALS AND TOPICS FOR
 DISCUSSION.  FURLOUGH AND RECALL OF THE WAE AND INTERMITTENT EMPLOYEES
 WERE AMONG THE MAIN CONCERNS OF THE UNION.
 
    ON MAY 1, 1978, RESPONDENT RESPONDED TO THE ABOVE LETTERS POINTING
 OUT THAT IT HAD REQUESTED THAT A MEETING OF THE LABOR MANAGEMENT
 RELATIONS COMMITTEE BE CONVENED ON MAY 12, 1978, FOR PURPOSES OF FULLY
 DISCUSSING THE UNION'S PROPOSALS AND MANAGEMENT'S CURRENT PRACTICES IN
 REGARDS THERETO.
 
    ON MAY 12, 1978, THE PARTIES HELD A LABOR MANAGEMENT RELATIONS
 COMMITTEE MEETING.  DURING THE COURSE OF THE MEETING THE PARTIES
 DISCUSSED IN DETAIL THE NATURE OF THE WAE AND INTERMITTENT EMPLOYEES,
 THEIR FUNCTIONS, RESPECTIVE BENEFITS AND THE MANNER IN WHICH RESPONDENT
 INTENDED TO UTILIZE EACH GROUP OF EMPLOYEES.  RESPONDENT ANSWERED ALL
 THE UNION'S QUESTIONS CONCERNING HYPOTHETICAL SITUATIONS, DEALING WITH
 THE AVAILABILITY OF WORK AND THE TYPE OF EMPLOYEE (I.E. WAE OF
 INTERMITTENT) THAT RESPONDENT INTENDED TO UTILIZE OR CALL IN FOR SUCH
 WORK.  DURING THE DISCUSSIONS WHICH IN THE MAIN CONCERNED THE FURLOUGH
 AND RECALL OF WAE AND INTERMITTENT EMPLOYEES, RESPONDENT IN RESPONSE TO
 THE UNION'S INQUIRY POINTED OUT THAT SEPARATE ROSTERS WERE BEING
 MAINTAINED FOR WAE AND INTERMITTENT EMPLOYEES.  THE INTERMITTENT ROSTER
 WAS FASHIONED ON A SIMILAR BASIS AS THAT ESTABLISHED FOR THE WAE
 EMPLOYEES IN THE MULTI-DISTRICT AGREEMENT.  /8/ WITH RESPECT TO
 RESPONDENT'S POLICY OF RECALL, RESPONDENT MADE IT CLEAR THAT WHEN WORK
 WAS CERTAIN TO MATERIALIZED, WAE EMPLOYEES WOULD BE RECALLED IN
 PREFERENCE TO INTERMITTENT EMPLOYEES.  ONLY WHEN THE AMOUNT OF WORK WAS
 IN DOUBT WOULD INTERMITTENTS BE GIVEN PREFERENCE OVER WAE EMPLOYEES FOR
 THE PURPOSES OF RECALL.  THE MEETING ENDED WITH THE UNDERSTANDING THAT
 RESPONDENT WOULD ISSUE CERTAIN MEMORANDA PREDICATED ON THE DISCUSSIONS
 AND THE UNION WOULD REVIEW SAME AND RESUBMIT ANY ITEMS THEY WISHED TO
 MAKE THE SUBJECT OF FURTHER NEGOTIATIONS.
 
    ON MAY 25, 1978, RESPONDENT WROTE A LETTER TO ACTING CHIEF STEWARD
 BAILEY WHEREIN IT REFERRED TO THE DISCUSSION OF MAY 12, 1978, CITED THE
 FACT THAT THE MAY 12TH DISCUSSIONS WERE SUMMARIZED IN A FOUR PAGE MINUTE
 WHICH HAD BEEN CIRCULATED TO THE PARTIES AND REQUESTED FURTHER COMMENT
 FROM THE UNION CONCERNING ITS DESIRES FOR ADDITIONAL NEGOTIATIONS.  ON
 JUNE 26, 1978, THE UNION SUBMITTED SIX ADDITIONAL PROPOSALS FOR
 CONSIDERATION.  THESE PROPOSALS WERE TO BE IN ADDITION TO THE PROPOSALS
 PREVIOUSLY SUBMITTED ON APRIL 20TH, 1978.  ON JUNE 27, 1978, WITHOUT
 FURTHER CONTACT OR DISCUSSION WITH THE RESPONDENT, THE UNION FILED ITS
 PRECOMPLAINT CHARGE.
 
                         DISCUSSION AND CONCLUSION
 
    INASMUCH AS THE DECISION TO HIRE AND UTILIZE INTERMITTENT EMPLOYEES
 ALONG WITH WAE EMPLOYEES IN THE TAXPAYERS SERVICE DIVISION OF THE
 RICHMOND DISTRICT FALLS WITHIN THE EXCLUSIONARY LANGUAGE OF SECTION
 11(B) AND 12(B) OF THE EXECUTIVE ORDER, RESPONDENT WAS NOT OBLIGATED TO
 BARGAIN WITH THE UNION CONCERNING SUCH DECISION.  AFGE, LOCAL 1778 AND
 MCGUIRE AIR FORCE BASE, NEW JERSEY, FLRC NO. 77A-18, NO. 142(1978);
 NAGE LOCAL R12-183 AND MCCLELLAN AIR FORCE BASE, CALIFORNIA, FLRC NO.
 77A-81, NO, 107(1976).  RESPONDENT, HOWEVER, WAS OBLIGATED TO GIVE
 TIMELY NOTICE OF ITS DECISION TO USE INTERMITTENT EMPLOYEES TO THE UNION
 AND, UPON REQUEST, MEET AND CONFER CONCERNING THE IMPACT AND
 IMPLEMENTATION OF SUCH DECISION.  DEPARTMENT OF THE NAVY, NAVAL PLANT
 REPRESENTATIVE OFFICE, BALTIMORE, MARYLAND, A/SLMR NO. 486;  ARMY AND
 AIR FORCE EXCHANGE SERVICE, PACIFIC EXCHANGE SYSTEM, HAWAII REGIONAL
 EXCHANGE, A/SLMR NO. 454;  INTERNAL REVENUE SERVICE, AUSTIN SERVICE
 CENTER, A/SLMR NO. 1142;  IMMIGRATION AND NATURALIZATION SERVICE, FLRC
 NO.  70A-10(1971);  PLUM ISLAND ANIMAL DISEASE LABORATORY, FLRC NO.
 71A-11(1971);  GRIFFISS AIR FORCE BASE, FLRC NO.  71A-30(1973);  BUREAU
 OF MEDICINE AND SURGERY, GREAT LAKES NAVAL HOSPITAL, ILLINOIS, A/SLMR
 NO.  289.
 
    NOTING THE ABOVE-CITED LEGAL PRINCIPLES AND CASE PRECEDENTS,
 COMPLAINANT TAKES THE POSITION THAT RESPONDENT VIOLATED SECTIONS
 19(A)(1) AND (6) OF THE ORDER BY VIRTUE OF ITS ACTIONS IN (1) USING
 "INTERMITTENT EMPLOYEES IN TAXPAYERS SERVICE FOR THE FIRST TIME", (2)
 ESTABLISHING A "FURLOUGH RECALL POLICY WHEREIN THE RESPONDENT FURLOUGHED
 WAES BEFORE INTERMITTENTS AND RECALLED INTERMITTENTS TO WORK PRIOR TO
 WAES" AND (3) ESTABLISHING AND USING A SEPARATE EVALUATIVE ROSTER FOR
 INTERMITTENTS.
 
    RESPONDENT, ON THE OTHER HAND, TAKES THE POSITION THAT THE COMPLAINT
 MUST BE DISMISSED ON THE GROUND THAT IT WAS NOT TIMELY FILED.
 ALTERNATIVELY, RESPONDENT TAKES THE POSITION THAT COMPLAINANT HAS FAILED
 TO TIMELY REQUEST NEGOTIATIONS OVER IMPACT AND IMPLEMENTATION OF
 RESPONDENTS DECISION TO USE INTERMITTENT EMPLOYEES AND THAT THERE WAS NO
 CHANGE IN THE MANNER OR PRACTICE OF FURLOUGHING WAE EMPLOYEES.
 
    INASMUCH AS THE DECISION TO HIRE INTERMITTENT EMPLOYEES AND
 EFFECTUATION OF SAME OCCURRED DURING THE PERIOD APRIL-AUGUST 1977, OVER
 SIX AND NINE MONTHS, RESPECTIVELY, BEFORE THE FILING OF THE CHARGE ON
 JUNE 27, 1978 AND THE COMPLAINT ON SEPTEMBER 27, 1978, FURTHER
 PROCEEDINGS THEREON, ARE BARRED BY SECTIONS 203.2(A)(2) AND 203.2(B)(3)
 OF THE RULES AND REGULATIONS.  VETERANS ADMINISTRATION, VETERANS
 ADMINISTRATION HOSPITAL, MUSKOGEE, OKLAHOMA, A/SLMR NO. 301;  FEDERAL
 AVIATION ADMINISTRATION, WESTERN REGION, SAN FRANCISCO, CALIFORNIA, FLRC
 NO. 74A-27, NO. 55(JULY 31, 1974).
 
    MOREOVER, AND IN ANY EVENT, I FIND THE EVIDENCE INSUFFICIENT TO
 ESTABLISH THAT THE RESPONDENT VIOLATED THE ORDER WITH RESPECT TO ITS
 DECISION AND ACTIONS IN HIRING INTERMITTENT EMPLOYEES AS TAXPAYER
 SERVICE REPRESENTATIVES IN THE RICHMOND DISTRICT.  WHILE I DO NOT
 CONDOME RESPONDENT'S DISREGARD OF PROTOCOL, I.E. ADMITTED FAILURE TO
 GIVE NOTICE OF ITS CONTEMPLATED ACTION TO THE UNION'S PRESIDENT, I FIND
 THAT THE RECORD SUPPORTS THE CONCLUSION THAT THE UNION HAD ADEQUATE
 KNOWLEDGE OF THE RESPONDENT'S DECISION RELATIVE TO INTERMITTENTS MONTHS
 BEFORE ANY FINAL ACTION THEREON WAS TAKEN.  THUS, IT IS NOTED THAT UNION
 STEWARD WEST WAS NOTIFIED OF THE PROPOSED DECISION IN APRIL, JOB
 DESCRIPTIONS WERE POSTED ON SOME 30 BULLETIN BOARDS TWO WEEKS
 THEREAFTER, AND NORFOLK UNION STEWARD MCGINTY MADE INQUIRIES ABOUT THE
 INTERMITTENTS IN MAY 1978.  ADDITIONALLY, IT WAS RESPONDENT'S PRACTICE
 TO SEND COPIES OF ALL POSITION ANNOUNCEMENTS TO THE CHAPTER PRESIDENTS
 OF THE NTEU.  HAVING BEEN INFORMED OF THE CONTEMPLATED ACTION WITH
 RESPECT TO INTERMITTENTS SOME THREE MONTHS PRIOR TO THE ACTUAL HIRE OF
 THE INTERMITTENTS IN AUGUST, THE UNION WAS NOT DEPRIVED OF ITS
 REPRESENTATIONAL RIGHTS AND WAS UNDER AN OBLIGATION TO REQUEST
 BARGAINING THEREON IF IT SO DESIRED.  CF. SOUTHEAST EXCHANGE SERVICE,
 ROSEWOOD WAREHOUSE, COLUMBIA, SOUTH CAROLINA, A/SLMR 656.  IN THE
 ABSENCE OF A DEMAND, INSUFFICIENT BASIS EXISTS FOR A 19(A)(6) FINDING
 PREDICATED UPON RESPONDENT'S FAILURE TO BARGAIN OVER THE IMPACT AND
 MANNER OF IMPLEMENTATION OF ITS DECISION TO HIRE INTERMITTENTS.  U.S.
 DEPARTMENT OF AIR FORCE, NORTON AIR FORCE BASE, A/SLMR 261;  U.S. AIR
 FORCE ELECTRONICS SYSTEM DIVISION, HANSCOM AIR FORCE BASE, A/SLMR 571;
 U.S.  ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY, A/SLMR 732.
 
    FOLLOWING THE HIRE OF THE INTERMITTENTS AND NEW WAES IN AUGUST OF
 1977, THE UNION FAILED TO RAISE ANY QUESTIONS CONCERNING THE
 INTERMITTENTS UNTIL A LABOR MANAGEMENT RELATIONS COMMITTEE MEETING HELD
 ON JANUARY 10, 1978, SOME FIVE MONTHS LATER.  AT THAT TIME RESPONDENT
 ELABORATED ON THE NATURE OF THE WAE AND INTERMITTENT EMPLOYEES POSITIONS
 AND THE MANNER IN WHICH RESPONDENT INTENDED TO USE SAME.  THEREAFTER, ON
 JANUARY 20, 1978, THE UNION FOR THE FIRST TIME REQUESTED IMPACT AND
 IMPLEMENTATION BARGAINING.  RESPONDENT IMMEDIATELY RESPONDED AND
 REQUESTED MORE SPECIFIC INFORMATION RELATIVE TO THE UNION'S "CONCERNS"
 AND "PROPOSALS".  HOWEVER, NO FURTHER COMMUNICATIONS CONCERNING
 NEGOTIATIONS OVER IMPACT AND IMPLEMENTATION WERE RECEIVED FROM THE UNION
 UNTIL APRIL 20, 1978 SOME FIVE DAYS AFTER THE RESPONDENT HAD COMMENCED
 FURLOUGHING SOME OF THE WAE EMPLOYEES, IN ACCORDANCE WITH THE
 MULTI-DISTRICT AGREEMENT WHILE RETAINING OR SCHEDULING INTERMITTENT
 EMPLOYEES ON A LIMITED BASIS.  THE INTERMITTENTS WERE SEPARATED AND/OR
 RECALLED ON THE BASIS OF A SEPARATE ROSTER THAN THE ONE UTILIZED FOR WAE
 EMPLOYEES.  THIS SEPARATE ROSTER, HOWEVER, WAS CONSTRUCTED UPON THE SAME
 BASIS AS THAT ESTABLISHED FOR THE WAE EMPLOYEES.
 
    WITH RESPECT TO COMPLAINANT'S CONTENTIONS PREDICATED UPON THE
 FOREGOING EVENTS, I.E. FURLOUGH OF WAES AND RECALL OF INTERMITTENTS IN
 LIEU OF THE WAES AND THE ESTABLISHMENT OF A SEPARATE RECALL ROSTER FOR
 INTERMITTENTS, I AGAIN FIND THE RECORD EVIDENCE INSUFFICIENT TO SUSTAIN
 A 19(A)(1) AND (6) VIOLATION.  HAVING BEEN INFORMED DURING THE LABOR
 MANAGEMENT COMMITTEE MEETING HELD IN JANUARY 1978 OF THE NATURE OF THE
 WAE AND INTERMITTENT CLASSIFICATION AND THE MANNER RESPONDENT INTENDED
 TO UTILIZE SAME, THE UNION, IF IT SO DESIRED, WAS UNDER AN OBLIGATION TO
 TIMELY REQUEST IMPACT AND IMPLEMENTATION BARGAINING.  INSTEAD, IT
 IGNORED RESPONDENT'S REQUEST FOR SPECIFICS, I.E. THE UNION'S "CONCERNS"
 AND "PROPOSALS", AND WAITED UNTIL THE RESPONDENT HAD FURLOUGHED SOME
 WAES AND RECALLED SOME INTERMITTENTS, SOME THREE MONTHS LATER, BEFORE
 SUBMITTING ITS PROPOSALS AND PERFECTING ITS REQUEST FOR NEGOTIATIONS ON
 IMPACT AND IMPLEMENTATION.  TO FIND A VIOLATION IN THESE CIRCUMSTANCES
 WOULD HAVE THE EFFECT OF NULLIFYING AND/OR NEGATING THE AUTHORITY
 RESERVED TO RESPONDENT BY SECTIONS 11(B) AND 12(B) OF THE ORDER SINCE
 IMPLEMENTATION OF ANY MANAGEMENT DECISION WOULD OF NECESSITY HAVE TO BE
 DELAYED OR POSTPONED IMMEDIATELY UPON RECEIPT OF A UNION'S BELATED
 DEMAND FOR IMPACT AND IMPLEMENTATION BARGAINING.  CF. VETERANS
 ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS, FLRC NO. 71A-31,
 NO. 31(1972).  HAD NOT THE CHANGES IN WORKING CONDITIONS INVOLVED HEREIN
 BEEN INTEGRALLY RELATED TO THE VERY NATURE OF THE INTERMITTENTS ORIGINAL
 EMPLOYMENT THEN OF COURSE A CONTRARY CONCLUSION MIGHT WELL BE IN ORDER.
 HOWEVER, THIS WAS NOT THE CASE.
 
    FOLLOWING THE UNION'S BELATED OR UNTIMELY REQUEST FOR IMPACT AND
 IMPLEMENTATION NEGOTIATIONS, RESPONDENT MET WITH THE UNION ON MAY 12,
 1978, AND DISCUSSED IN FULL THE SITUATION WITH RESPECT TO THE USE OF
 WAES AND INTERMITTENTS.  THE MEETING CONCLUDED WITH THE UNDERSTANDING
 THAT THE RESPONDENT WOULD ISSUE A WRITTEN MEMORANDUM SUMMARIZING THE
 MEETING AND THE UNION WOULD REVIEW SAME AND SUBMIT A LIST OF SUBJECTS
 THAT IT WISHED TO MAKE THE SUBJECT OF FUTURE NEGOTIATIONS.  THEREAFTER,
 DESPITE THE FACT THAT RESPONDENT DID IN FACT ISSUE THE MEMORANDUM AND
 STOOD READY TO CONTINUE BARGAINING ON THE MATTER, THE UNION AFTER
 SUBMITTING ADDITIONAL PROPOSALS AND WITHOUT ANY REQUEST FOR FURTHER
 DISCUSSION FILED THE CHARGES LEADING UP TO THE INSTANT COMPLAINT.
 INASMUCH AS THE RECORD INDICATES THAT AT LEAST UP UNTIL JUNE 27, 1978,
 WHEN THE CHARGES WERE FILED, RESPONDENT STOOD READY AND WILLING TO
 NEGOTIATE AND/OR BARGAIN OVER THE IMPLEMENTATION AND IMPACT OF ITS PAST
 ACTIONS WITH REGARD TO THE FURLOUGHING OF WAES AND OF INTERMITTENTS,
 INSUFFICIENT BASIS EXISTS FOR A 19(A)(1) AND (6) FINDING PREDICATED UPON
 THE EVENTS OCCURRING BETWEEN APRIL 15 AND JUNE 27, 1978.
 
    LASTLY, IN THE ABSENCE OF ANY EVIDENCE INDICATING THAT RESPONDENT'S
 ACTION IN FURLOUGHING SOME WAES AND RECALLING SOME INTERMITTENTS WAS
 RELATED TO THE UNION ACTIVITY OR AFFILIATION OF THE EMPLOYEES INVOLVED,
 I SHALL DISMISS THE 19(A)(2) ALLEGATION OF THE COMPLAINT.
 
                             RECOMMENDED ORDER
 
    IN VIEW OF THE ABOVE CONCLUSIONS, IT IS HEREBY ORDERED THAT THE
 COMPLAINT BE, AND IT HEREBY IS, DISMISSED.  /9/
 
                            BURTON S. STERNBURG
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MAY 14, 1979
 
    WASHINGTON, DC
 
                                 APPENDIX
 
    THE TRANSCRIPT IS HEREBY CORRECTED AS FOLLOWS:  (TABLE OMITTED)
 
    1 IN REACHING THIS RESULT THE AUTHORITY NOTES THAT THE COMPLAINANT
 WAS INFORMED IN JANUARY, 1978, OF THE WAY THE RESPONDENT INTENDED TO
 UTILIZE "WHEN ACTUALLY EMPLOYED" AND "INTERMITTENT" EMPLOYEES.  HOWEVER,
 COMPLAINANT WAITED UNTIL APRIL 14, 1978, AND VERY END OF THE TAX SEASON,
 TO SUBMIT ITS PROPOSALS AND PERFECT ITS REQUEST FOR NEGOTIATIONS ON THE
 IMPACT AND IMPLEMENTATION OF THE FURLOUGH AND RECALL OF THESE EMPLOYEES.
  BY THAT TIME, SOME EMPLOYEES ALREADY HAD BEEN SCHEDULED FOR FURLOUGH,
 AND OTHERS FOR RECALL.  THUS, UNDER THE CIRCUMSTANCES, THE AUTHORITY
 CONCLUDED THAT THE REQUEST FOR BARGAINING OVER IMPACT AND IMPLEMENTATION
 WAS NOT TIMELY PERFECTED.  SOCIAL SECURITY ADMINISTRATION, BUREAU OF
 HEARINGS AND APPEALS, A/SLMR NO. 960(1978).
 
    /2/ IN CONFORMITY WITH SECTION 902(B)OF THE CIVIL SERVICE REFORM ACT
 OF 1978(92 STAT. 1224) THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE(92 STAT. 1191) HAD NOT BEEN ENACTED.
 THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /3/ THE RECORD INDICATES THAT INTERMITTENT EMPLOYEES HAD BEEN USED IN
 OTHER DIVISIONS OF RICHMOND DISTRICT IN THE PAST.  ADDITIONALLY, THE
 MULTI DISTRICT AGREEMENT CURRENTLY IN EFFECT MAKES REFERENCE TO
 INTERMITTENT EMPLOYEES.
 
    /4/ WHILE BOTH MR. SULZER AND MS. WEST AGREE THAT THEY HAD A
 DISCUSSION APRIL 15, 1977, CONCERNING THE PROPOSED HIRE OF INTERMITTENT
 EMPLOYEES, THEY DISAGREED WITH RESPECT TO THE LOCATION AND CIRCUMSTANCES
 SURROUNDING THE DISCUSSION.  THUS, MS. WEST CLAIMS THAT THE DISCUSSION
 TOOK PLACE IN MR. SULZER'S OFFICE WHILE THEY WERE DISCUSSING OTHER
 AGENCY BUSINESS.  MR. SULZER, ON THE OTHER HAND, CLAIMS THAT THE
 DISCUSSION WAS HELD IN A GROUP MANAGER'S OFFICE AND THAT HE CALLED MS.
 WEST INTO THE OFFICE FOR THE EXPRESS PURPOSE OF INFORMING HER OF THE
 CONTEMPLATED ACTION WITH RESPECT TO INTERMITTENT EMPLOYEES.  WITH
 RESPECT TO WHICH OFFICIALS IN THE UNION WERE TO BE FORMALLY GIVEN NOTICE
 OF CHANGES IN WORKING CONDITIONS AFFECTING UNIT EMPLOYEES, MR.  ROBERT
 SPENCER AND MR. GEORGE COUSINS, PRESENT AND FORMER PRESIDENT,
 RESPECTIVELY, OF NTEU CHAPTER 48, TESTIFIED WITHOUT CONTRADICTION THAT
 THE PRESIDENT AND NOT THE UNION STEWARDS WAS, AND HAD BEEN IN THE PAST,
 THE PROPER PARTY TO RECEIVE NOTICE OF ANY CHANGE IN WORKING CONDITIONS
 AFFECTING UNIT EMPLOYEES.
 
    /5/ MR. SHAPIRO, CHIEF OF PERSONNEL, TESTIFIED WITHOUT CONTRADICTION
 THAT IT WAS THE USUAL PRACTICE TO SEND COPIES OF ALL POSITION
 ANNOUNCEMENTS TO THE CHAPTER PRESIDENT OF NTEU.  HOWEVER, HE DID NOT
 KNOW FOR A FACT THAT A COPY OF THE APRIL 26TH ANNOUNCEMENT HAD BEEN SENT
 TO BE UNION.  THE UNION, ON THE OTHER HAND, DID NOT DENY THAT THEY HAD
 RECEIVED A COPY OF THE POSITION DESCRIPTION.
 
    /6/ MS. SANDRA WEST, THE UNION STEWARD FOR THE RICHMOND POST OF DUTY,
 PARTICIPATED AS AN INSTRUCTOR IN TWO OF