10:0182(37)CA - IRS and NTEU -- 1982 FLRAdec CA



[ v10 p182 ]
10:0182(37)CA
The decision of the Authority follows:


 10 FLRA No. 37
 
 INTERNAL REVENUE SERVICE
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 3-CA-900
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN
 THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING
 THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.  THEREAFTER, THE
 CHARGING PARTY (NTEU) FILED EXCEPTIONS TO THE JUDGE'S DECISION.  /1/
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
 JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S DECISION AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY
 HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS,
 ONLY TO THE EXTENT CONSISTENT HEREWITH.
 
    THE COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1)
 AND (5) OF THE STATUTE BY REFUSING TO BARGAIN WITH NTEU CONCERNING THE
 IMPACT AND IMPLEMENTATION OF A NATIONWIDE COLLECTION QUALITY REVIEW
 SYSTEM (CQRS).  PRIOR TO IMPLEMENTATION OF THE NATIONWIDE CQRS, THE
 RESPONDENT DECIDED TO "PILOT" THE PROGRAM IN 7 OF ITS APPROXIMATELY 58
 DISTRICTS AND NOTIFIED NTEU OF ITS INTENTIONS.  THE PARTIES MET AND
 NEGOTIATED A MEMORANDUM OF UNDERSTANDING BEFORE THE PILOT PROGRAM WAS
 IMPLEMENTED.  UPON COMPLETION OF THE PILOT PROGRAM, THE RESPONDENT
 NOTIFIED NTEU OF ITS INTENTION TO IMPLEMENT THE CQRS NATIONWIDE AND
 PROVIDED NTEU WITH A PROPOSED MEMORANDUM OF UNDERSTANDING AS WELL AS
 RELATED DOCUMENTS COVERING THE NATIONWIDE IMPLEMENTATION.  THE
 RESPONDENT'S DOCUMENTS CONTAINED NUMEROUS CHANGES TO THE PILOT PROGRAM
 WHICH WERE DESIGNATED TO ELIMINATE THE "BUGS" FROM THE CQRS BEFORE IT
 WAS IMPLEMENTED NATIONWIDE.  NTEU REQUESTED NEGOTIATIONS AND SUBMITTED
 SPECIFIC PROPOSALS.  THE RESPONDENT TOOK THE POSITION THAT THE EARLIER
 MEMORANDUM OF UNDERSTANDING ENCOMPASSED THE NATIONWIDE IMPLEMENTATION
 OF
 THE CQRS AS WELL AS THE PILOT PROGRAM, AND THAT NTEU WAS LIMITED TO
 BARGAINING OVER REVISIONS MADE BY IRS IN THE PILOT PROGRAM AND ONE AREA
 WHICH HAD BEEN EXPLICITLY RESERVED FOR FUTURE NEGOTIATIONS DURING THE
 COURSE OF THE BARGAINING WHICH LED TO THE EARLIER MEMORANDUM OF
 UNDERSTANDING.  THE RESPONDENT REJECTED NTEU'S PROPOSALS AS NOT FALLING
 UNDER EITHER OF THESE TWO CATEGORIES.
 
    THE JUDGE FOUND THAT, DURING THE NEGOTIATIONS LEADING TO THE
 MEMORANDUM OF UNDERSTANDING, THE RESPONDENT HAD INFORMED NTEU THAT IT
 INTENDED THE NEGOTIATIONS TO COVER THE NATIONWIDE PROGRAM AS WELL AS THE
 PILOT PROGRAM WHEREIN THE "BUGS" WOULD BE WORKED OUT OF THE SYSTEM.  THE
 JUDGE DID NOT FIND, NOR DOES THE RECORD REVEAL, WHAT, IF ANY, RESPONSE
 NTEU MADE TO THIS EXPRESSION OF INTENT.
 
    THE JUDGE FURTHER FOUND THAT, INASMUCH AS THE NATIONWIDE PROGRAM HAD
 BEEN INCLUDED WITHIN THE SCOPE OF THE MEMORANDUM OF UNDERSTANDING, THE
 RESPONDENT WAS OBLIGATED TO NEGOTIATE WITH NTEU ONLY WITH RESPECT TO THE
 IMPACT AND IMPLEMENTATION OF THE RESPONDENT'S PROPOSED CHANGES TO THE
 CQRS FOLLOWING THE PILOT PROGRAM, AND THAT INASMUCH AS NTEU'S PROPOSALS
 DID NOT ADDRESS SUCH PROPOSED CHANGES THE RESPONDENT DID NOT VIOLATE
 SECTION 7116(A)(1) AND (5) OF THE STATUTE WHEN IT REFUSED TO NEGOTIATE
 OVER NTEU'S PROPOSALS.
 
    IN THE PARTICULAR CIRCUMSTANCES OF THIS CASE, THE AUTHORITY CONCLUDES
 THAT THE RESPONDENT FAILED AND REFUSED TO BARGAIN WITH NTEU IN GOOD
 FAITH AND THEREBY VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE.
 THUS, THE AGREEMENT NEGOTIATED BY THE PARTIES PRIOR TO IMPLEMENTATION OF
 THE PILOT PROGRAM CONTEMPLATED THAT CHANGES UNKNOWN AT THE TIME WOULD
 BE
 MADE TO THE CQRS BASED UPON EXPERIENCE GAINED DURING THE PILOT PROGRAM.
 THE RESPONDENT THEREAFTER PROPOSED CERTAIN SPECIFIC CHANGES AND
 SUBMITTED A PROPOSED MEMORANDUM OF AGREEMENT AND A MANUAL SUPPLEMENT
 TO
 NTEU CONCERNING THE NATIONWIDE IMPLEMENTATION OF THE CQRS.  WHILE THE
 AUTHORITY ADOPTS THE JUDGE'S FINDING, BASED ON HIS CREDIBILITY
 DETERMINATION, THAT THE RESPONDENT INFORMED NTEU THAT IT VIEWED THE
 NEGOTIATIONS AND ANY AGREEMENT RESULTING THEREFROM AS APPLYING TO THE
 NATIONWIDE CQRS RATHER THAN JUST TO THE PILOT PROGRAM, THE AUTHORITY
 FURTHER FINDS THAT SUCH AGREEMENT CONCERNING THE CQRS CONTAINED NO
 WAIVER WITH RESPECT TO FUTURE BARGAINING BY NTEU, AND THAT NTEU DID NOT
 OTHERWISE CLEARLY AND UNMISTAKABLY WAIVE ITS RIGHT TO NEGOTIATE
 CONCERNING THE IMPACT AND IMPLEMENTATION OF THE NATIONWIDE PROGRAM.
 ACCORDINGLY, THE AUTHORITY FINDS THAT NTEU HAD THE STATUTORY RIGHT TO
 NEGOTIATE REGARDING THE FINAL PLAN FOR THE NATIONWIDE CQRS UPON
 COMPLETION OF THE PILOT PROGRAM.  THAT IS, ABSENT A CLEAR AND
 UNMISTAKABLE WAIVER BY NTEU, THE AUTHORITY CONCLUDES THAT NTEU HAD THE
 RIGHT TO PROPOSE CHANGES IN PROCEDURES AND APPROPRIATE ARRANGEMENTS FOR
 EMPLOYEES WHO WOULD BE ADVERSELY AFFECTED BY THE NEW SYSTEM BASED UPON
 ITS OWN EXPERIENCE IN DEALING WITH THE CQRS DURING THE PILOT PROGRAM,
 AND THAT IT WOULD BE INCONSISTENT WITH THE PURPOSES AND POLICIES OF THE
 STATUTE TO LIMIT THE RESPONDENT'S BARGAINING OBLIGATION STRICTLY TO THE
 PROPOSED CHANGES IN THE CQRS INITIATED BY MANAGEMENT.  SEE LIBRARY OF
 CONGRESS, 9 FLRA NO. 51(1982).  SEE ALSO LIBRARY OF CONGRESS, 9 FLRA NO.
 52(1982).
 
    HOWEVER, CONTRARY TO THE POSITION OF NTEU, THE AUTHORITY FINDS THAT A
 STATUS QUO ANTE REMEDY IS NOT WARRANTED.  THUS, BALANCING THE NATURE AND
 CIRCUMSTANCES OF THE VIOLATION AGAINST THE DEGREE OF DISRUPTION IN
 GOVERNMENT OPERATIONS THAT WOULD BE CAUSED BY SUCH A REMEDY, AND TAKING
 INTO CONSIDERATION THE VARIOUS FACTORS SET FORTH IN FEDERAL CORRECTIONAL
 INSTITUTION, 8 FLRA NO. 111(1982), THE AUTHORITY CONCLUDES THAT AN ORDER
 REQUIRING THE RESPONDENT TO BARGAIN UPON REQUEST ABOUT IMPACT AND
 IMPLEMENTATION WILL BEST EFFECTUATE THE PURPOSES AND POLICIES OF THE
 STATUTE.  IN THIS REGARD, THE AUTHORITY NOTES THAT THE RESPONDENT HAD
 BARGAINED IN GOOD FAITH PRIOR TO THE IMPLEMENTATION OF THE PILOT PROGRAM
 AND THAT ITS LATER REFUSAL TO BARGAIN EXCEPT WITH RESPECT TO PROPOSALS
 RELATING TO MANAGEMENT'S MODIFICATIONS WAS FOUND ON AN ARGUABLE BUT
 MISTAKEN BELIEF THAT ITS OBLIGATION IN THAT RESPECT WAS SO LIMITED.
 MOREOVER, THE AUTHORITY NOTES THAT, GIVEN THE NATIONWIDE CHARACTER OF
 THE CQRS, A REQUIREMENT TO RETURN TO THE STATUS QUO ANTE WOULD CAUSE
 SUBSTANTIAL DISRUPTION TO GOVERNMENT OPERATIONS.  ACCORDINGLY, THE
 AUTHORITY FINDS THAT A STATUS QUO ANTE REMEDY IS NOT WARRANTED.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
 HEREBY ORDERED THAT THE INTERNAL REVENUE SERVICE SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING AND REFUSING TO NEGOTIATE WITH THE NATIONAL TREASURY
 EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES,
 CONCERNING THE PROCEDURES TO BE UTILIZED IN THE IMPLEMENTATION OF THE
 NATIONWIDE COLLECTION QUALITY REVIEW SYSTEM AND/OR APPROPRIATE
 ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED THEREBY.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSE AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE:
 
    (A) UPON REQUEST OF THE NATIONAL TREASURY EMPLOYEES UNION, THE
 EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, MEET AND NEGOTIATE CONCERNING
 THE PROCEDURES TO BE UTILIZED IN, AND/OR APPROPRIATE ARRANGEMENTS FOR
 EMPLOYEES ADVERSELY AFFECTED BY, THE IMPLEMENTATION OF THE NATIONWIDE
 COLLECTION QUALITY REVIEW SYSTEM.
 
    (B) POST AT ITS FACILITIES AND INSTALLATIONS COPIES OF THE ATTACHED
 NOTICE ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS
 AUTHORITY.  UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
 COMMISSIONER, INTERNAL REVENUE SERVICE, AND SHALL BE POSTED AND
 MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES,
 INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
 EMPLOYEES ARE CUSTOMARILY POSTED.  THE COMMISSIONER SHALL TAKE
 REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
 OR COVERED BY ANY OTHER MATERIAL.
 
    (C) NOTIFY THE REGIONAL DIRECTOR OF REGION III, FEDERAL LABOR
 RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
 ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
        NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
 
           THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
 
          EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
 
            UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 
                                 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT FAIL AND REFUSE TO NEGOTIATE WITH THE NATIONAL TREASURY
 EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES,
 CONCERNING THE PROCEDURES TO BE UTILIZED IN THE IMPLEMENTATION OF THE
 NATIONWIDE COLLECTION QUALITY REVIEW SYSTEM AND/OR APPROPRIATE
 ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED THEREBY.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL, UPON REQUEST OF THE NATIONAL TREASURY EMPLOYEES UNION, THE
 EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, MEET AND NEGOTIATE CONCERNING
 THE PROCEDURES TO BE UTILIZED IN, AND/OR APPROPRIATE ARRANGEMENTS FOR
 EMPLOYEES ADVERSELY AFFECTED BY, THE IMPLEMENTATION OF THE NATIONWIDE
 COLLECTION QUALITY REVIEW SYSTEM.
 
                                 (AGENCY)
 
    DATED:  . . .  BY:  . . .
 
                            (SIGNATURE) (TITLE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR OF REGION III, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS
 IS:  1111 18TH STREET, N.W., WASHINGTON, D.C.  20036, AND WHOSE
 TELEPHONE NUMBER IS (202) 653-8507.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    RAMONA H. HALL, ESQUIRE
    RICHARD J. MIHLECIC, ESQUIRE
    FOR THE RESPONDENT
 
    ERICK J. GENSER, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    SEAN J. ROGERS, ESQUIRE
    FOR THE CHARGING PARTY
 
    BEFORE:  BURTON S. STERNBURG
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL LABOR-MANAGEMENT RELATIONS
 STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. 7101, ET SEQ.,
 AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED. REG. VOL. 45, NO.
 12, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV, PART 2411, ET SEQ.
 
    PURSUANT TO A CHARGE FILED ON FEBRUARY 25, 1980, BY THE NATIONAL
 TREASURY EMPLOYEES UNION, (HEREINAFTER CALLED THE NTEU OR UNION), A
 COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON SEPTEMBER 26, 1980, BY THE
 REGIONAL DIRECTOR FOR REGION III, FEDERAL LABOR RELATIONS AUTHORITY,
 WASHINGTON, D.C.  THE COMPLAINT ALLEGES THAT THE INTERNAL REVENUE
 SERVICE, (HEREINAFTER CALLED THE RESPONDENT OR IRS), VIOLATED SECTIONS
 7116(A)(1) AND (5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE, (HEREINAFTER CALLED THE STATUTE), BY VIRTUE OF ITS ACTIONS IN
 REFUSING TO BARGAIN WITH THE UNION CONCERNING THE IMPACT AND
 IMPLEMENTATION OF A SERVICEWIDE QUALITY REVIEW PROGRAM.
 
    A HEARING WAS HELD IN THE CAPTIONED MATTER ON NOVEMBER 13, 1980, IN
 WASHINGTON, D.C.  ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
 HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
 BEARING ON THE ISSUES INVOLVED HEREIN.  ALL PARTIES SUBMITTED BRIEFS ON
 DECEMBER 15, 1980, WHICH HAVE BEEN DULY CONSIDERED.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF THE RESPONDENT'S
 PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES LOCATED IN RESPONDENT'S
 REGIONAL OFFICES, DISTRICT OFFICES AND NATIONAL OFFICE.
 
    IN MID-JANUARY 1979, THE NTEU WAS INFORMED THAT THE IRS PLANNED TO
 REDEFINE THE ROLE OF THE REVENUE OFFICER GROUP MANAGER WITHIN THE
 COLLECTION DIVISION OF IRS.  ALTHOUGH THE NTEU WAS NOT THE EXCLUSIVE
 REPRESENTATIVE OF THE GROUP MANAGERS, THE NTEU WAS, HOWEVER, CONCERNED
 ABOUT THE POSSIBLE IMPACT ON BARGAINING UNIT EMPLOYEES RESULTING FROM
 THE REALIGNMENT OF THE GROUP MANAGER'S FUNCTIONS.  ON JANUARY 18, 1979,
 THE NTEU SENT A LETTER TO THE IRS WHEREIN IT EXPRESSED ITS CONCERNS OVER
 THE PROPOSED CHANGES AND REQUESTED NEGOTIATIONS OVER THE IMPACT OF THE
 CHANGES ON BARGAINING UNIT EMPLOYEES.
 
    ON APRIL 12, 1979, IRS FORWARDED TO THE NTEU A COPY OF THE FINALIZED
 DOCUMENT ENTITLED "ROLE OF THE REVENUE OFFICER GROUP MANAGER".  IN THE
 COVER LETTER ATTACHED TO THE DOCUMENT, IRS STATED THAT THE CHANGES IN
 THE GROUP MANAGER'S ROLE WOULD BE IMPLEMENTED ON OCTOBER 12, 1979, IN
 CONJUNCTION WITH A QUALITY COLLECTION REVIEW PROGRAM.  THE CHANGES IN
 BOTH THE ROLE OF THE GROUP MANAGER AND THE QUALITY COLLECTION REVIEW
 PLAN WERE TO BE IMPLEMENTED "SERVICEWIDE" AFTER THEY HAD BEEN TESTED
 OVER A PERIOD OF TIME IN SIX OR SEVEN SELECTED IRS DISTRICTS.  THE
 LETTER FURTHER STATED THAT "THE PURPOSE OF THE TESTS IS TO ANALYZE AND
 REFINE THE MECHANICS OF THE QUALITY REVIEW FUNCTION".
 
    ON APRIL 17, 1979, THE NTEU SENT A LETTER TO IRS WHEREIN IT NOTED,
 AMONG OTHER THINGS, ITS CONCERNS ABOUT THE GROUP MANAGER BEING REMOVED
 FROM THE PROCESS OF REVIEWING EMPLOYEES' WORK PRODUCTS AND INSTITUTING
 IN PLACE THEREOF A SYSTEM WHEREBY EMPLOYEES' PEERS WOULD BE ASSIGNED
 QUALITY REVIEW FUNCTIONS.
 
    ON MAY 3, 1979, THE IRS SENT THE NTEU A COPY OF A DRAFT MANUAL
 SUPPLEMENT WHICH SET FORTH PROCEDURES FOR IMPLEMENTING A NEW COLLECTION
 QUALITY REVIEW SYSTEM IN SEVEN "PILOT" IRS DISTRICTS.  THE "PILOT"
 PROGRAM WAS TO COMMENCE ON JUNE 3, 1979, AND END NOVEMBER 1979.  THE
 DRAFT INDICATED THAT "A TASK FORCE" HAD RECOMMENDED "PILOTING" THE
 PROGRAM PRIOR TO NATIONWIDE IMPLEMENTATION.  THEREAFTER, NTEU RESPONDED
 TO THE IRS'S MAY 3, 1979, TRANSMITTAL.  THUS, ON MAY 22, 1979, NTEU SENT
 A LETTER TO THE IRS WHEREIN IT OUTLINED THE AREAS IN THE DRAFT MANUAL
 SUPPLEMENT OVER WHICH IT WISHED TO NEGOTIATE.  THE NTEU POINTED OUT THAT
 IT WAS ITS DESIRE TO INSURE THAT THE PROGRAM WOULD OPERATE UNIFORMLY IN
 THE SELECTED DISTRICTS AND THAT ALL STANDARDS AND DEFINITIONS FOR REVIEW
 APPRAISALS WOULD BE PROPERLY ADHERED TO IN ALL PILOT DISTRICTS.
 
    ON JUNE 6, 1979, A MEETING WAS HELD BETWEEN VARIOUS REPRESENTATIVES
 OF THE IRS AND NTEU.  MR. WILLIAM PERSINA AND MR. RUSSELL BOWDEN
 REPRESENTED THE NTEU, AND MR. BRUCE TOMASO AND MR. STEVEN ROCHE
 REPRESENTED THE IRS.  DURING THE COURSE OF THE MEETING THE PARTIES
 DISCUSSED A SET OF PROPOSALS PRESENTED BY THE . NTEU.  WHEN MR. TOMASO,
 EXPRESSED CONCERN OVER THE NEGOTIABILITY OF ONE OF THE PROPOSALS DEALING
 WITH THE DEFINITION OF "CRITICAL ERRORS" IN THE CLOSE CASE REVIEW
 PROCESS, THE NTEU VOLUNTARILY WITHDREW THE "CRITICAL ERROR" PROPOSALS
 FROM CONSIDERATION AFTER FIRST MAKING IT CLEAR THAT IT WAS NOT WAIVING
 ITS RIGHT TO RESUBMIT THEM AT A LATER DATE.
 
    ON JUNE 7, 1979, NTEU SENT A LETTER TO THE IRS CONCERNING THE
 "PROPOSED TEST PLAN OF DISTRICT COLLECTION ACTIVITY QUALITY REVIEW
 SYSTEM".  THE LETTER CONFIRMED THE DISCUSSIONS OF THE DAY BEFORE AND
 INDICATED WHICH PROPOSALS STILL REMAINED FOR CONSIDERATION.  THE LETTER
 MADE IT CLEAR THAT THE NTEU WAS NOT WAIVING ITS RIGHTS TO DEAL WITH THE
 "CRITICAL ERRORS" PROPOSALS AT A FUTURE DATE.
 
    THE PARTIES MET AGAIN ON JULY 13, 1979, AND FURTHER DISCUSSED THE
 PROPOSED QUALITY REVIEW SYSTEM.  AMONG THE POINTS OF CONTENTION WAS THE
 USE AND RETENTION OF "FORM 6216", A CHECKSHEET USED IN REVIEWING
 EMPLOYEES' CLOSED CASES.  THE UNION WAS CONCERNED ABOUT THE USE OF "FORM
 6216" AND THE PERIOD OF TIME IT WOULD BE HELD.  THE PARTIES FAILED TO
 REACH AGREEMENT WITH RESPECT TO THIS ISSUE AND THE OVERALL IMPACT AND
 MANNER OF IMPLEMENTATION OF THE PROPOSED QUALITY REVIEW SYSTEM.
 
    THEREAFTER, FOLLOWING ANOTHER MEETING BETWEEN THE PARTIES ON JUNE 20,
 1979, THE EXCHANGE OF MEMORANDUMS OF UNDERSTANDING AUTHORED BY THE NTEU
 AND THE IRS, RESPECTIVELY, AND A NUMBER OF TELEPHONE CONVERSATIONS
 BETWEEN MR. BOWDEN AND MR. TOMASO, THE PARTIES EVENTUALLY SIGNED A
 WRITTEN AGREEMENT ON JULY 6, 1979, PERTAINING TO THE IMPLEMENTATION OF
 THE COLLECTION REVIEW SYSTEM.  THE JULY 6, 1979, AGREEMENT SET FORTH NO
 EXPIRATION DATE AND IS SILENT WITH RESPECT TO WHETHER OR NOT THE
 AGREEMENT WOULD BE APPLICABLE TO ANY SUBSEQUENT NATIONWIDE
 IMPLEMENTATION OF THE QUALITY REVIEW SYSTEM.  ADDITIONALLY, THE
 AGREEMENT CONTAINS NO GENERAL WAIVER WITH RESPECT TO FUTURE BARGAINING
 BY THE UNION, BUT MAKES IT CLEAR THAT THE MATTER OF RETENTION OF COPIES
 OF "FORM 6216" WILL BE NEGOTIATED FURTHER WHEN "THE TEST PERIOD FOR THE
 QUALITY REVIEW PROGRAM IS COMPLETED AND THE TEST PERIOD RESULTS HAVE
 BEEN EVALUATED".
 
    THE AGREEMENT WAS THEN IMPLEMENTED IN THE SEVEN PILOT DISTRICTS.
 
    ALTHOUGH THE PARTIES ARE IN AGREEMENT WITH RESPECT TO THE ABOVE
 CHRONOLOGY AND SUMMARY OF THE FACTS, A DISPUTE EXISTS WITH RESPECT TO
 THE NATURE AND/OR SCOPE OF THE JULY 6, 1979 AGREEMENT BETWEEN THE
 PARTIES.  ACCORDING TO MR. BOWDEN AND MR. PERSINA, IT WAS THEIR
 UNDERSTANDING THAT THE PARTIES WERE ONLY NEGOTIATING AN AGREEMENT
 APPLICABLE TO THE PILOT OR TEST PERIOD AND THAT THERE WOULD BE FURTHER
 NEGOTIATIONS PRIOR TO IMPLEMENTATION OF THE QUALITY REVIEW SYSTEM ON A
 NATIONWIDE SCALE.  MR. ROCHE AND MR. TOMASO, ON THE OTHER HAND,
 TESTIFIED THAT DURING THE NEGOTIATIONS LEADING UP TO THE FINAL
 AGREEMENT, THEY BOTH MADE IT CLEAR THAT THE NEGOTIATIONS WERE FOR A
 QUALITY REVIEW SYSTEM TO BE IMPLEMENTED NATIONWIDE.
 
    ACCORDING TO MR. ROCHE, THE AUTHOR AND DESIGNER OF THE PROGRAM, HE
 TOLD THE UNION REPRESENTATIVES AT THE FIRST MEETING, THE ONLY ONE HE
 ATTENDED,
 
    . . . WE WERE NEGOTIATING . . . A PROGRAM THAT WE WERE GOING
 NATIONWIDE WITH, AND WE
 
    SPECIFIED THAT WHILE WE WERE GOING NATIONWIDE WITH IT THE DECISION
 HAD BEEN MADE TO GO
 
    NATIONWIDE AND THIS (IS) WHAT WE WERE NEGOTIATING.  WE WERE PLANNING
 TO PILOT WHAT WE WERE
 
    NEGOTIATING.  WE WERE PLANNING TO PILOT THE COLLECTION QUALITY REVIEW
 PROGRAM IN SEVEN
 
    DISTRICTS TO WORK ANY BUGS OUT OF THE SYSTEM TO FACILITATE NATIONWIDE
 IMPLEMENTATION.  BUT WE
 
    SPECIFIED WHAT WE WERE NEGOTIATING WAS THE ENTIRE PACKAGE, NATIONWIDE
 IMPLEMENTATION.
 
    FURTHER ACCORDING TO MR. ROCHE, HE INFORMED THE NTEU REPRESENTATIVES
 OF THE DIFFERENCE BETWEEN A PILOT PROGRAM AND A TEST PROGRAM, NAMELY,
 THAT A PILOT PROGRAM IS ONE THAT IS DEFINITELY GOING TO BE IMPLEMENTED
 AFTER A TEST PERIOD, WHILE A TEST PROGRAM IS ONE WHICH MAY NEVER BE
 IMPLEMENTED AFTER THE FINAL RESULTS ARE ANALYZED.
 
    MR. TOMASO TESTIFIED THAT HE AND MR. ROCHE "MADE IT CLEAR" THAT THE
 SCOPE OF THE PROGRAM THEY WERE NEGOTIATING WAS NATIONWIDE AND THAT THEY
 TOLD THE NTEU THAT THEY "INTENDED TO DEAL WITH THIS ISSUE ONCE".  WHEN
 ASKED WHAT HE MEANT BY THE WORD "ISSUE", MR. TOMASO STATED AS FOLLOWS:
 
    THE ISSUE OF THE QUALITY REVIEW PROGRAM;  THAT WE DEAL WITH IT ONCE,
 THAT WE EFFECT AN
 
    AGREEMENT, AND MR. BOWDEN ASKED A SPECIFIC QUESTION, IS THIS PROGRAM
 GOING TO
 
    CHANGE.  SUBSTANTIVELY NO, SIR, IT WILL NOT CHANGE.  WHAT WILL CHANGE
 IF ANYTHING WILL
 
    CHANGE?  INTERNAL MECHANICS.  QUESTIONS LIKE SAMPLING SIZES.  ARE WE
 DEALING WITH THE PROPER
 
    NUMBER OF CASES IN THE REVIEW MECHANIC ITSELF?  THEY MAY CHANGE.
 SUBSTANTIVELY THIS PROGRAM
 
    WILL NOT CHANGE.  WHAT YOU SEE IS WHAT YOU GET.  . . . I MEANT BY
 WHAT YOU SEE IS WHAT YOU GET
 
    THAT THIS IS THE PROGRAM, IT WILL NOT CHANGE.  THIS IS THE PROGRAM
 THAT WILL BE PUT IN PLACE
 
    FOR THE PURPOSE OF THE PILOT, THIS IS THE PROGRAM THAT WILL BE PUT
 INTO PLACE FOR THE PURPOSE
 
    OF NATIONWIDE IMPLEMENTATION.  LET'S DEAL WITH IT AND DEAL WITH IT
 NOW.
 
    MR. PERSINA CAN NOT RECALL WHETHER THE IRS OFFICIALS MAY HAVE
 INDICATED THAT THERE WOULD BE "NO REVISIONS IN THE PROGRAM AFTER THE
 PILOT STUDY WAS COMPLETED".  HE DID ACKNOWLEDGE, HOWEVER, THAT IRS
 REPRESENTATIVES MAY HAVE SAID "SOMETHING ABOUT WE DON'T ANTICIPATE
 CHANGES BUT WE ARE GOING TO RUN THIS PROGRAM AND SEE WHAT HAPPENS".  MR.
 PERSINA FURTHER TESTIFIED THAT IT WAS HIS UNDERSTANDING THAT THE TARGET
 DATE FOR COMPLETING THE PILOT PROGRAM WAS JANUARY 1980, AND THAT
 FOLLOWING EVALUATION OF THE PILOT PROGRAM, THERE WAS GOING TO BE A
 PROPOSAL FOR THE IMPLEMENTATION OF THE QUALITY REVIEW PROGRAM
 NATIONWIDE.
 
    MR. BOWDEN DENIED THAT ANY IRS OFFICIAL HAD EVER INDICATED THAT THE
 AGREEMENT THAT THEY WERE NEGOTIATING WOULD APPLY TO A NATIONWIDE QUALITY
 REVIEW PROGRAM.  ACCORDING TO BOWDEN, THE PARTIES WERE ONLY NEGOTIATING
 FOR THE PILOT PROGRAM AND MR. TOMASO INDICATED THAT THERE WOULD BE
 FURTHER NEGOTIATIONS AFTER STATISTICS HAD BEEN COMPILED FROM THE PILOT
 PROGRAM.
 
    ON DECEMBER 19, 1979, THE IRS FORWARDED A NUMBER OF DOCUMENTS TO THE
 NTEU CONCERNING THE NATIONWIDE IMPLEMENTATION OF A COLLECTION QUALITY
 REVIEW SYSTEM.  THE DOCUMENTS INCLUDED A PROPOSED MEMORANDUM OF
 AGREEMENT COVERING THE NATIONWIDE IMPLEMENTATION AND A MANUAL SUPPLEMENT
 APPLICABLE TO THE NATIONWIDE IMPLEMENTATION OF THE QUALITY REVIEW
 SYSTEM.  THE MANUAL SUPPLEMENT WAS THE SAME SUPPLEMENT USED IN THE PILOT
 PROGRAM WITH NUMEROUS CHANGES THERETO NOTED IN THE MARGINS.  /2/
 
    UPON RECEIPT OF THE ABOVE TRANSMITTAL, MR. FRANK FERRIS OF THE NTEU
 CALLED THE IRS AND SET UP A MEETING TO DISCUSS THE DRAFT DOCUMENTS
 PERTAINING TO THE NATIONWIDE IMPLEMENTATION OF THE QUALITY REVIEW
 SYSTEM.  THE PARTIES SUBSEQUENTLY MET ON JANUARY 8, 1980, AT WHICH TIME
 MR. FERRIS SUBMITTED A NUMBER OF PROPOSALS.  THE RESPONDENT REFUSED TO
 NEGOTIATE MOST OF THE NTEU'S PROPOSALS ON THE GROUND THAT THEY DID NOT
 PERTAIN TO THE CHANGES IN THE QUALITY REVIEW PROGRAM MADE BY IRS IN THE
 MARGIN ON THE MANUAL SUPPLEMENT.  IT WAS IRS'S POSITION THAT THE JULY 6,
 1979, MEMORANDUM OF UNDERSTANDING BETWEEN THE PARTIES PRECLUDED ANY
 FURTHER NEGOTIATIONS WITH RESPECT TO NATIONWIDE IMPLEMENTATION OF THE
 MANUAL SUPPLEMENT, SAVE FOR THOSE PROVISIONS WHERE FUTURE BARGAINING WAS
 RESERVED.  THE PARTIES AGAIN MET ON JANUARY 11, 1980.  AT THIS TIME THE
 NTEU SUBMITTED A SCALED DOWN LIST OF PROPOSALS FOR NEGOTIATION.  THE IRS
 REMAINED STEADFAST IN ITS POSITION AND REFUSED TO BARGAIN OVER ANY OF
 THE PROVISIONS OF THE MANUAL SUPPLEMENT WHICH HAD NOT BEEN AMENDED SINCE
 THE START OF THE PILOT PROGRAM.
 
    SUBSEQUENTLY, WITHOUT ANY FURTHER BARGAINING, THE IRS IMPLEMENTED THE
 PROGRAM ON A NATIONWIDE BASIS ON OR ABOUT JANUARY 21, 1980.
 
                        DISCUSSION AND CONCLUSIONS
 
    RESOLUTION OF THE INSTANT CASE TURNS SOLELY UPON THE SCOPE OF THE
 JULY 6, 1979, AGREEMENT BETWEEN THE PARTIES.  IF, AS CONTENDED BY THE
 IRS, THE SCOPE WAS NATIONWIDE, THEN IRS WAS ONLY OBLIGATED TO BARGAIN
 WITH THE NTEU OVER THE IMPACT AND IMPLEMENTATION OF ANY SUBSEQUENT
 CHANGES MADE IN THE JULY 6, 1979 AGREEMENT.  ON THE OTHER HAND, IF, AS
 CONTENDED BY THE GENERAL COUNSEL, THE AGREEMENT WAS LIMITED TO ONLY THE
 PILOT PROGRAM, THE IRS WAS OBLIGATED TO BARGAIN FROM SCRATCH WITH REGARD
 TO THE IMPACT AND IMPLEMENTATION OF A NATIONWIDE QUALITY REVIEW PROGRAM.
 
    IN SUPPORT OF ITS POSITION, THE IRS RELIES ON THE TESTIMONY OR MR.
 ROCHE AND MR. TOMASO, THE FACT THAT THE MAY 3, 1979, MANUAL SUPPLEMENT
 SPEAKS OF PILOTING PRIOR TO NATIONWIDE IMPLEMENTATION, AND THE FACT THAT
 THERE WOULD HAVE BEEN NO REASON FOR THE NTEU TO RESERVE ON THE "FORM
 6216" ISSUE IF FURTHER NEGOTIATIONS PRIOR TO NATIONWIDE IMPLEMENTATION
 OF THE QUALITY REVIEW PROGRAM WERE CONTEMPLATED.  THE GENERAL COUNSEL
 RELIES ON THE TESTIMONY OF MR.  PERSINA AND MR. BOWDEN AS WELL AS THE
 INTRODUCTORY LANGUAGE OF THE MAY 3, 1979, MANUAL SUPPLEMENT WHICH SPEAKS
 OF PROCEDURES FOR IMPLEMENTING THE PILOT PROGRAM IN THE PILOT DISTRICTS.
  /3/
 
    ON THE BASIS OF THE RECORD AS WHOLE, INCLUDING THE DEMEANOR OF THE
 WITNESSES, I FIND THAT MR. ROCHE AND MR. TOMASO DID INFORM THE NTEU
 REPRESENTATIVES THAT WHAT THEY WERE IN FACT NEGOTIATING WAS A NATIONWIDE
 QUALITY REVIEW PROGRAM WHICH WOULD BE IMPLEMENTED FOLLOWING A PILOT
 PERIOD WHEREIN THE "BUGS" WOULD BE WORKED OUT OF THE SYSTEM.  I FURTHER
 FIND THAT THE UNION WAS INFORMED THAT THE IRS CONTEMPLATED SOME CHANGES
 IN THE MECHANICS OF THE PROGRAM AFTER THE RESULTS OF THE PILOT PERIOD
 HAD BEEN EVALUATED.
 
    FINALLY, CONTRARY TO THE TESTIMONY OF MR. BOWDEN AND MR. PERSINA, I
 FIND THAT THE NTEU REPRESENTATIVES WERE AWARE OF THE SCOPE OF THE
 NEGOTIATIONS, I.E.  NATIONWIDE QUALITY REVIEW PROGRAM, PRIOR TO SIGNING
 THE JULY 6, 1979 MEMORANDUM OF AGREEMENT.  SUPPORT FOR THIS LATTER
 CONCLUSION IS FOUND IN THE MEMORANDUM OF AGREEMENT.  IF, AS CONTENDED BY
 THE GENERAL COUNSEL, THE PARTIES WERE IN FACT ONLY NEGOTIATING A PILOT
 PROGRAM WITH THE UNDERSTANDING THAT THERE WOULD BE NEW NEGOTIATIONS AT
 THE TERMINATION OF THE PILOT PROGRAM AND PRIOR TO NATIONWIDE
 IMPLEMENTATION OF THE QUALITY REVIEW PROGRAM, I FAIL TO SEE THE
 NECESSITY FOR SINGLING OUT AND/OR PRESERVING ONLY THE FORM 6216 ISSUE
 FOR FUTURE NEGOTIATIONS.  THE ALLEGED RATIONALE FOR SUCH ACTION, FEAR OF
 SETTING A PRECEDENT, IS EQUALLY APPLICABLE TO ALL THE TERMS OF THE
 AGREEMENT WHICH ENCOMPASSES THE MANUAL SUPPLEMENT SETTING FORTH THE
 ACTUAL PROCEDURES FOR THE OPERATION OF THE QUALITY REVIEW PROGRAM.
 ADDITIONALLY, I FIND THAT THE DRAFT MANUAL SUPPLEMENT SUBMITTED TO THE
 NTEU ON MAY 3, 1979, INDICATED THAT QUALITY REVIEW PROGRAM WAS TO HAVE
 NATIONWIDE APPLICATION.
 
    HAVING CONCLUDED THAT THE JULY 6, 1979, MEMORANDUM OF AGREEMENT
 BETWEEN THE PARTIES WAS APPLICABLE TO THE NATIONWIDE IMPLEMENTATION OF
 THE QUALITY REVIEW PROGRAM, I FIND THAT THE IRS WAS ONLY OBLIGATED TO
 BARGAIN WITH THE NTEU OVER THE IMPACT AND IMPLEMENTATION OF ANY CHANGES
 MADE IN THE JULY 6, 1979, MEMORANDUM OF AGREEMENT.  INASMUCH AS THE NTEU
 PROPOSALS SUBMITTED IN JANUARY OF 1980 DID NOT ADDRESS THE IRS'S
 PROPOSED CHANGES, THE IRS DID NOT VIOLATE SECTIONS 7116(A)(1) AND (5) OF
 THE STATUTE WHEN IT REFUSED TO BARGAIN THEREON.  ACCORDINGLY, I SHALL
 RECOMMEND THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 
                                   O