13:0366(61)CA - IRS (District, Region, National Office Unit) and NTEU -- 1983 FLRAdec CA



[ v13 p366 ]
13:0366(61)CA
The decision of the Authority follows:


 13 FLRA No. 61
 
 INTERNAL REVENUE SERVICE (DISTRICT,
 REGION, NATIONAL OFFICE UNIT)
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 3-CA-1067
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that Respondent had engaged in the
 unfair labor practices alleged in the complaint and recommending that it
 be ordered to cease and desist therefrom and take certain affirmative
 action.  Thereafter, the Respondent filed exceptions with respect to the
 Judge's Decision and the Charging Party filed a response in opposition.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and Recommended Order.
 
    In agreement with the Judge, the Authority finds that the Respondent
 (IRS) violated section 7116(a)(1) and (5) of the Statute when it
 unilaterally implemented the revised Unit IV Corporate Income Tax
 Training Program for Revenue Agents without affording the exclusive
 representative, National Treasury Employees Union (NTEU), prior notice
 and an opportunity to request bargaining on procedures and/or
 appropriate arrangements for bargaining unit employees affected by the
 revised training course.  See Internal Revenue Service (District, Region
 and National Office Unit and Service Center Unit), 10 FLRA No. 61
 (1982).  /1/
 
    Further, the Authority finds that the status quo ante remedy
 recommended by the Judge is warranted.  Such conclusion is based upon a
 careful balancing and consideration of the specific factors enumerated
 in Federal Correctional Institution, 8 FLRA No. 111 (1982).
 Specifically, in this case, the Respondent substantially revised its
 Unit IV Corporate Income Tax Training Program and implemented it
 nationwide without any prior notice to or bargaining with NTEU.
 Thereafter, NTEU requested bargaining and its request was refused.
 Moreover, the Respondent's unilateral changes had the effect of denying
 all GS-7 and GS-9 employees nationwide an opportunity to participate in
 the classroom phase of such training although they had previously been
 eligible, and thus denied these employees the opportunity to handle
 complex corporate income tax returns so to better enhance their career
 and professional development.  Additionally, by unilaterally
 establishing a new requirement that entry into the classroom phase of
 training would be limited to those Revenue Agents who successfully
 completed a pre-classroom phase, the Respondent precluded many unit
 employees nationwide from participating therein.  As a result,
 bargaining unit employees were significantly impacted by the
 Respondent's violation of its bargaining obligation.  In contrast, it
 does not appear that a status quo ante remedy would disrupt or impair
 the efficiency and effectiveness of IRS's operations.  Rather, it would
 merely require IRS to reinstitute its preexisting policy of providing
 classroom training to all previously eligible employees pending
 negotiations with NTEU.  Accordingly, the Authority concludes that a
 status quo ante remedy is appropriate in order to best effectuate the
 purposes and policies of the Statute.  See Internal Revenue Service
 (District, Region and National Office Unit and Service Center Unit), 10
 FLRA No. 61 (1982).  /2/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, the
 Authority hereby orders that the Internal Revenue Service (District,
 Region, National Office Unit), shall:
 
    1.  Cease and desist from:
 
    (a) Instituting unilateral changes in the Unit IV Corporate Income
 Tax Training Program for Revenue Agents, including the establishment of
 a pre-classroom phase of the Unit IV Training Program and an extension
 of the classroom phase of the Unit IV Training Program without affording
 the National Treasury Employees Union, the exclusive representative of
 the affected employees, an opportunity to negotiate concerning the
 impact of the changes in the Unit IV Training Program on bargaining unit
 employees, and the methods and procedures to be utilized in implementing
 these changes.
 
    (b) Denying GS-7 and GS-9 Revenue Agents entry into the pre-classroom
 phase, and thus the classroom phase of the Unit IV Corporate Income Tax
 Training Program and denying entry into the classroom phase of the Unit
 IV Training Program to any Revenue Agent based upon his/her performance
 during the pre-classroom phase of the Unit IV Training Program, pending
 negotiations, if requested, with the National Treasury Employees Union
 concerning the impact of these changes on bargaining unit employees and
 the methods and procedures to be utilized in implementing these changes.
 
    (c) 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
 purposes and policies of the Statute:
 
    (a) Upon request by the National Treasury Employees Union, the
 exclusive representative of its employees, negotiate concerning the
 impact of the changes in the Unit IV Corporate Income Tax Training
 Program for Revenue Agents on bargaining unit employees, and the methods
 and procedures to be utilized in implementing these changes.
 
    (b) Offer the option of entering the classroom phase of training to
 all Revenue Agents who have been denied entry into the classroom phase
 of the Unit IV Corporate Income Tax Training Program based upon the
 unilateral changes herein, pending negotiations, if requested, with the
 National Treasury Employees Union concerning the impact of the changes
 in the Unit IV Training Program on bargaining unit employees and the
 methods and procedures to be utilized in implementing these changes.
 
    (c) Remove all indications of failure from the records of all
 employees who were denied entry into the classroom phase of training
 because of failure in the pre-classroom phase of the Unit IV Corporate
 Income Tax Training Program.
 
    (d) Post at all Department of the Treasury, Internal Revenue Service
 facilities and installations, nationwide, 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 Regional
 Commissioner, or his designee, and shall be posted and maintained for a
 period of 60 consecutive days thereafter, in conspicuous places,
 including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 insure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (e) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region III, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.  
 
 Issued, Washington, D.C., November 3, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, 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 institute unilateral changes in the Unit IV Corporate Income
 Tax Training Program for Revenue Agents, including the establishment of
 a pre-classroom phase of the Unit IV Training Program and an extension
 of the classroom phase of the Unit IV Training Program without affording
 the National Treasury Employees Union, the exclusive representative of
 the affected employees, an opportunity to negotiate concerning the
 impact of the changes in the Unit IV Training Program on bargaining unit
 employees and the methods and procedures to be utilized in implementing
 these changes.  WE WILL NOT deny GS-7 and GS-9 Revenue Agents entry into
 the pre-classroom phase, and thus the classroom phase, of the Unit IV
 Corporate Income Tax Training Program or deny entry into the classroom
 phase of the Unit IV Training Program to any Revenue Agent based upon
 his/her performance during the pre-classroom phase of the Unit IV
 Training Program, pending negotiations, if requested, with the National
 Treasury Employees Union concerning the impact of these changes on
 bargaining unit employees and the methods and procedures to be utilized
 in implementing these changes.  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 by the National Treasury
 Employees Union, the exclusive representative of our employees,
 negotiate concerning the impact of the changes in the Unit IV Corporate
 Income Tax Training Program for Revenue Agents on bargaining unit
 employees, and the methods and procedures to be utilized in implementing
 these changes.  WE WILL offer the option of entering the classroom phase
 of training to all Revenue Agents who have been denied entry into the
 classroom phase of the Unit IV Corporate Income Tax Training Program
 based upon the unilateral changes herein, pending negotiations, if
 requested, with the National Treasury Employees Union concerning the
 impact of the changes in the Unit IV Training Program on bargaining unit
 employees and the methods and procedures to be utilized in implementing
 these changes.  WE WILL remove all indications of failure from the
 records of all employees who were denied entry into the classroom phase
 of training because of failure in the pre-classroom phase of the Unit IV
 Corporate Income Tax Training Program.
                                       (Activity)
 
 Dated:  . . .  By:  (Signature) (Title) This Notice must remain posted
 for 60 consecutive days from the date of posting, and must not be
 altered, defaced, or covered by any other material.  If employees have
 any questions concerning this Notice or compliance with its provisions,
 they may communicate directly with the Regional Director, Region III,
 Federal Labor Relations Authority, whose address is:  P.O. Box 33758,
 Washington, D.C.  20033-0758, and whose telephone number is:  (202)
 653-8507.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 3-CA-1067
 
    BRUCE H. Kennedy, Esq.
    William T. Lyons, Esq.
          For the Respondent
 
    Sharyn Danch, Esq.
          For the Charging Party
 
    Clara A. Williamson, Esq.
          For the General Counsel
 
    Before:  FRANCIS E. DOWD
          Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
 U.S.C. 7101, et seq.  It was instituted by the Acting Regional Director
 of the Third Region of the Federal Labor Relations Authority by the
 issuance of a Complaint and Notice of Hearing dated July 28, 1980.  The
 Complaint was issued following an investigation of an unfair labor
 practice charge filed on April 3, 1980 by National Treasury Employees
 Union, herein referred to as the Charging Party, Union or NTEU.  The
 Complaint alleges that Internal Revenue (District, Region, National
 Office Unit), herein referred to as Respondent or IRS, violated Section
 7116(a)(1) and (5) of the Statute by implementing, on a national scale,
 certain changes relative to the establishment of a pre-classroom phase
 of Unit IV Corporate Income Tax Training for revenue agents, without
 prior notification to or negotiation with the Union.  Further, it is
 alleged that Respondent has failed and refused to negotiate in good
 faith with the Union concerning the impact of the charge on unit
 employees and the methods and procedures to be utilized in implementing
 the changes.  Respondent denies any violation of the Statute and asserts
 that it fully bargained in good faith with respect to the impact and
 implementation of all "job related" training during the negotiations
 over the current contract.
 
    A hearing was held in Washington, D.C. at which the parties were
 represented by counsel and afforded full opportunity to adduce evidence
 and call, examine, and cross-examine witnesses and argue orally.  Briefs
 filed by Respondent, Charging Party and the General Counsel have been
 duly considered.
 
    Prior to the original date of the scheduled hearing, Respondent made
 a request to postpone the hearing due to the unavailability of its major
 witnesses.  This request was granted by the Chief Judge.  No request for
 postponement was made at anytime by the Charging Party or the General
 Counsel, even though they apparently knew one of their witnesses might
 not be available because he was appearing as a witness at another FLRA
 hearing the same day.  On the morning of the hearing this potential
 problem was brought to my attention and I made it clear to the parties
 that it was the responsibility of Counsel for the General Counsel to
 have all her witnesses present, just as Respondent had its witnesses
 present.  Furthermore, it is my recollection that the witness, J.
 Russell Bowden, was not a witness essential to presentation of the
 General Counsel's case in chief, but rather, a possible witness for
 rebuttal depending upon the testimony presented by Respondent.  Upon
 conclusion of the Respondent's case, a brief delay in the proceeding was
 granted in order that Counsel for the General Counsel could locate its
 rebuttal witness who was not present, as she had expected.  She was
 unable to locate him so I closed the hearing after denying a request by
 the Charging Party to submit Mr. Bowden's testimony "in some other form"
 post-hearing.  Attached to the Charging Party's brief is a motion to
 reopen the hearing in order to receive the testimony of Mr. Bowden whose
 testimony is alleged to be necessary because he is the only available
 expert competent to testify for NTEU regarding the bargaining history.
 If this is so, it seems to me that a request to postpone the hearing
 should have been made initially as arrangements should have been made to
 assure Mr. Bowden's attendance at the scheduling hearing.  When a
 hearing is scheduled, all parties are expected to have their witnesses
 ready and available to testify.  This case involves no element of
 surprise.  Counsel for the General Counsel anticipated the possible need
 for Mr. Bowden's testimony but, whatever arrangements were made with Mr.
 Bowden, he failed to appear.  The Charging Party's motion is hereby
 denied.
 
    Upon consideration of the entire record /3/ in this case, including
 my evaluation of the testimony and evidence presented at the hearing,
 and from my observation of the witnesses and their demeanor, I make the
 following findings of fact, conclusions of law, and recommended order.
 
                             Findings of Fact
 
    1.  The essential facts in this matter are contained in a Stipulation
 between the parties (G.C. Exh. No. 1, Jt. Exh. Nos. 1-9).  To the extent
 possible, I have adopted verbatim the General Counsel's proposed actual
 findings.
 
    2.  The Union and Respondent are parties to a collective bargaining
 agreement which was effective during all times material to this
 Complaint.  The Union is the collective bargaining representative for
 employees in four national consolidated units (Stip., para. 5).
 
    3.  On or about February 1, 1980, Respondent implemented, on a
 national scale, a revised and redesigned Unit IV Corporate Income Tax
 Training Program for Revenue Agents (Stip., para. 6).  This Training
 Program was implemented nationwide without prior notification to or
 negotiation with the Union (Stip., para. 9).  Respondent, by letter
 dated March 7, 1980 (Jt. Exh. No. 9), in response to an inquiry from
 Frank Ferris, Director of Training, NTEU, stated that information
 concerning Unit IV Training was not previously shared with the Union
 because pursuant to Article 12 of the collective bargaining agreement,
 management believed the training was necessary for the performance of
 employees' presently assigned duties or proposed assignment and further
 stated that the course revision did not impact upon personnel policies,
 practices, or working conditions (Stip., para. 11).
 
    4.  The revision of the Unit IV Program primarily consisted of adding
 a pre-classroom phase of training, which had not previously existed, and
 extending the classroom phase from 12 days to 15 days (Stip., para. 6
 and 8).  The pre-classroom phase of Unit IV Training was made a
 prerequisite to the classroom phase of such training (Stip., para. 6).
 The draft Manual Supplement setting forth the requirements of the
 pre-classroom phase of Unit IV Training was transmitted to "All District
 Directors 130 Southeast Region" by Memorandum dated February 14, 1980,
 and stating in pertinent portions:
 
          Attached for your information is the draft Manual Supplement
       establishing guidelines and instructions for implementing the
       redesigned Revenue Agent Unit IV Training Course.  . . . As can be
       seen in the supplement, the new Unit IV represents a radical
       change from the previous training course.  . . .
 
          Section 7 of the Supplement requires that participants must be
       GS-11 Revenue Agents with at least one year examination experience
       after the completion of the Unit II CUT Training and will be
       assigned corporate returns with complex issues upon completion of
       the course.  . . . The supplement also establishes rigid
       guidelines in Section 8 for the Unit IV Instructors.  . . . (Jt.
       Exh. No. 5).
 
    5.  The provisions of the draft Manual Supplement regarding the
 revisions in Unit IV Training (Jt. Exh. No. 4) were incorporated into
 the final Manual Supplement (Jt. Exh. No. 6) and include the following
 provisions:  Section 5 entitled "Pre-Classroom Training" provides in
 paragraph .01 that the following subjects will be introduced:  1.
 Earnings and profits and balance sheet approaches to the examination of
 corporate returns;  2. Accumulated earnings and personal holding company
 tax;  3. Distributions and redemptions;  4. Liquidations. and 5.
 Reorganizations.  The materials to be used in the pre-classroom phase of
 Unit IV Training are set forth in paragraph .02 and include a
 pre-classroom guide, a commercial text, Internal Revenue Code and
 Regulations, and a test booklet and answer sheet.  Section 5, paragraph
 .03 provides, inter alia, that the respective Group Managers will
 provide each participant with a 40-hour period, preferably all at once,
 to study the materials and take the test.  Section 5, paragraph .04
 provides that participants are allowed a maximum of 36 hours to study
 the pre-classroom materials at the end of which period a 4-hour test
 will be administered by the Chief, District Training and Development
 Branch or his/her designee (Stip., para. 7(a)).
 
    6.  As to the admission into the classroom phase of Unit IV Training,
 Section 5, paragraph .06 of the Manual Supplement provides that all
 participants will automatically be eligible for the classroom phase if
 they satisfactorily complete 70 percent of the objectives tested.
 According to paragraph .07, where a participant has completed less than
 70 percent of the objectives, the Branch Chief must certify that the
 participant is ready for classroom training (Stip., para. 7(b)).
 
    7.  Regarding the selection of participants, Section 7 provides that
 participants must be GS-11 Revenue Agents with at least one year of
 examination experience after completing Basic Revenue Agent Training
 including all classroom and on-the-job training segments.  GS-7 and GS-9
 Revenue Agents had previously been allowed entry into the classroom
 phase of Unit IV Training (Stip., para. 7(c)).
 
    8.  In regard to the selection of instructors, Section 8 of the
 Manual Supplement provides that all instructors will be GS-12 or GS-13
 Revenue Agents with extensive Corporate Income Tax field examination
 experience.  According to the Manual provisions, in no case will they
 have less than two years experience in examining Corporate Income Tax
 Returns involving issues covered in Unit IV.  Prior to the revision in
 Unit IV Training, instructors for the classroom phase of training were
 required to possess only general field experience (Stip., para. 7(d)).
 
    9.  In addition to extending the classroom phase of Unit IV Training
 from 12 days to 15 days, the materials for use in the classroom phase
 were increased.  The classroom phase of training now includes a text,
 student guide, instructors guide, and a handout package compared to the
 text, instructors guide and handout material used previously (Stip.,
 para. 7(e)).  The pre-classroom and classroom materials were available
 to Respondent's District Offices in February 1980, and subsequent to
 that date orders for such materials by Respondent's various regions have
 been filled (Stip., para. 9).
 
    10.  Employees, nationwide, have been denied entry into the classroom
 phase of Unit IV Training based upon their performance in the
 pre-classroom phase (Stip., para. 12 and 13).  For example, in
 Respondent's Des Moines, Iowa District, three employees failed the test
 administered during the pre-classroom phase of Unit IV Training and were
 denied entry into the classroom phase of such training.  In the
 Cincinnati, Ohio District, one employee initially failed the test, was
 retested, and failed a second time.  He was denied entry in the
 classroom phase of Unit IV Training (Stip., para. 12).  It was further
 stipulated that the examples in paragraph 12 of the Stipulation were not
 intended to inclusive of all individuals either admitted entry or denied
 entry into the classroom phase of Unit IV Training based upon their
 performance in the pre-classroom phase of Unit IV Training.
 
             Additional Findings, Conclusions, and Discussion
 
    11.  In January 1980 Respondent and NTEU engaged in bargaining
 concerning the impact and implementation of certain modifications to an
 Accounting Training Program (G.C. Exh. No. 2).  The General Counsel
 correctly relies on this as evidence showing prior bargaining about
 specific training programs.  In rebuttal, Respondent attempts to draw a
 distinction between "job related" and "non-job related" training.
 Respondent thus suggests that the Accounting Training Program was
 non-job related and therefore different from the Unit IV Training
 Program which is the subject of this case.  I agree with the General
 Counsel that this is a distinction without a difference and I hold that
 all training is job related, whether it provides an employee with skills
 necessary to perform presently assigned duties, or provides skills
 necessary to perform a different job.  Moreover, I don't believe it
 should matter whether the training is initiated and/or required by the
 employer, or whether it is initiated by the employee.  In this regard I
 note that Article 12, Section 4 authorizes reimbursement with government
 funds of approved job-related training initiated by employees.  Such
 provision is consistent with government regulations generally on the use
 of public funds to pay for education or training.  I simply cannot
 accept Respondent's assertion that the Audit Accounting Program is not
 job-related but is "viewed as a benefit or extension of the upward
 mobility program . . . because it does not provide the employee with
 skills necessary to do their presently assigned duties."
 
    12.  Mr. Irving Des Roches testified with respect to the bargaining
 history of the current contract.  While it is true that the word
 training appears in several places in the contract, and while it is true
 that Article 12 is devoted exclusively to the subject of training, I am
 unable to find any contract provision which expressly waives the Union's
 right to negotiate the impact and implementation of specific training
 programs, or training in general.  A capsule summary of Article 12 is
 that the employer and union both agree that training "is a matter of
 significant importance" to be encouraged by both, and funds permitting,
 to be approved and paid for by the employer.
 
    13.  The testimony of Mr. Des Roches also shows that during the
 negotiations the Union expressed concern about the impact of lack of
 training on individual employees.  As a result a provision was
 negotiated (Section 2 B of Articles 33 and 34) to the effect that lack
 of training was a defense in disciplinary and adverse actions.  However,
 as correctly asserted by the General Counsel, it is a non-sequitur to
 argue that the Union's concern for employees generally has foreclosed it
 from any subsequent negotiations concerning the impact and
 implementation of specific training programs.
 
    14.  Respondent also contends that over the years it has made
 "literally thousands" of changes in existing training programs, notified
 the Union of the changes, and never received any requests to bargain.
 Examples of these changes were not introduced into evidence so it's not
 really clear whether the alleged changes were minor in nature or had a
 substantial impact on employees.  Accordingly, I am not persuaded that
 there exists a long established past practice of not negotiating with
 respect to job related training programs.
 
    15.  At the hearing Respondent stated that it had already fulfilled
 its bargaining obligation when it negotiated the current contract.
 However, in its letter to the Union dated March 7, 1980, Respondent gave
 an additional reason for not having notified the Union concerning these
 changes, stating that the course revisions did not impact upon personnel
 policies, practices or working conditions (Stip., para. 11).
 
    a.  It is uncontroverted that the Respondent herein completely
 revised its Unit IV Corporate Income Tax Training Program and that such
 revision was accomplished without any notification to or negotiation
 with the Union.  The revisions herein constituted a substantial change
 in working conditions which impacted significantly upon bargaining unit
 employees.  As stated in the cover memorandum distributing the draft
 Manual Supplement, " . . . the new Unit IV represents a radical change
 from the previous training course.  . . . ".  Respondent established a
 pre-classroom phase of Unit IV Training which had not theretofore
 existed and made the successful completion of the pre-classroom phase a
 condition of entry into the classroom phase of training.  GS-7 and 9
 Revenue Agents had previously been allowed entry into the classroom
 phase of Unit IV Training, however, pursuant to the revisions herein
 GS-7 and 9 Revenue Agents are not allowed entry into pre-classroom phase
 thus precluding participation in the classroom phase of training.  A
 condition of entry into the pre-classroom phase imposed by the revisions
 is that a Revenue Agent must be a GS-11 with at least one year of
 examination experience after completing Basic Revenue Agent Training,
 including all classroom and on-the-job training segments (Stip., para.
 7(c)).
 
    b.  The impact of denying a Revenue Agent entry into the
 pre-classroom phase, and thus the classroom phase of training, is clear.
  Upon completion of the classroom phase of training an agent is given
 the opportunity to handle complex corporate income tax returns (Stip.,
 para. 7(c)).  The value to a Revenue Agent's career and professional
 development through the expansion of knowledge and experience in the
 area of corporate income tax is immeasurable.  Conversely, severe
 limitations are imposed upon a Revenue Agent by not being allowed to
 take Unit IV Training.  It is uncontroverted that Revenue Agents,
 nationwide, throughout Respondent's various districts, have, in fact,
 been denied entry into the classroom phase of training based upon their
 failure to pass the test administered during the pre-classroom phase of
 training (Stip., para. 12 and 13).  It is my conclusion, in agreement
 with the General Counsel, that Respondent's charge in the Unit IV
 Corporate Income Tax Training Program had a substantial impact adversely
 affecting employees.
 
                        Ultimate Conclusions of Law
 
    There is no serious dispute as to the fact that Respondent instituted
 a change in conditions of employment when it instituted the Unit IV
 Training Program and I have found and concluded that such change had a
 substantial impact adversely affecting employees.  /4/ There is also no
 dispute as to Respondent's failure to provide the NTEU with adequate
 notice prior to the change so that NTEU would have a reasonable
 opportunity to request bargaining.  /5/ In any event, the NTEU did
 request bargaining and its request was refused March 7, 1980 by
 Respondent.
 
    As previously noted, Respondent's defense is that it fulfilled its
 bargaining obligation by bargaining fully with NTEU in the area of job
 related training when it negotiated the existing contract.  Stated
 differently, Respondent is contending that NTEU has impliedly waived, by
 bargaining history and practice, its right to bargain about the change
 in this case.
 
    Waiver of bargaining rights, whether by express agreement, bargaining
 history, or inaction, has long been established as a legitimate defense
 to the charge of refusal to bargain.  /6/ The National Labor Relations
 Board has held in private sector cases that "waiver of a statutory right
 will not lightly be inferred" and that relinquishment of that right, to
 be effective, must be "clear and unmistakable." /7/ Or, as the Board
 said in the Proctor Manufacturing, case:  /8/
 
          The Board's rules, applicable to negotiations during the
       contract term with respect to a subject which has been discussed
       in precontract negotiations but which has not been specifically
       covered in the resulting contract, is that the employer violates
       Section 8(a)(5) if, during the contract term, he refuses to
       bargain or takes unilateral action with respect to the particular
       subject, unless it can be said from an evaluation of the prior
       negotiations that the matter was "fully discussed" or "consciously
       explored" and that the Union "consciously yielded" or clearly and
       unmistakably waived its interest in the matter.
 
 The National Labor Relations Board's test requiring a clear and
 unmistakable waiver has been applied in cases arising under the
 Executive Order /9/ and has been adopted by the Authority with respect
 to cases arising under the Statute.  /10/
 
    I have carefully reviewed the testimony of Respondent's witnesses
 concerning the bargaining history and past practice, and I have
 carefully examined the contractual provisions referred to by Respondent.
  Based upon this review, I am unable to find an express or implied
 waiver on the part of NTEU.  I am especially unpersuaded that the
 evidence establishes that the Union consciously yielded or clearly and
 unmistakably waived its right to bargain concerning the impact and
 implementation of any changes made by Respondent in its training
 programs.  Accordingly, I conclude that Respondent violated Section
 7116(a)(1) and (5) by its refusal to notify and bargain with NTEU.
 
                                  Remedy
 
    The Respondent, in opposing a status quo remedy, cites cases arising
 under the Executive Order wherein the Assistant Secretary and the
 Federal Labor Relations Council confined such remedy only to cases where
 the unilateral change concerned a subject matter within the purview of
 Section 11(a) of the Order.  /11/ However, as noted in the Charging
 Party's brief, the Executive Order has been superceded by the Statute
 and it is clear from Section 7106(b)(2) and (3) that rights reserved to
 management do not preclude negotiations concerning the procedures to be
 observed in exercising those rights and the impact on employees
 adversely affected.  In a negotiability case, the Authority has held
 that as long as an agency is not prevented "from acting at all," it can
 no longer argue that a delay in implementation would negate its
 management rights.  /12/ Moreover, in unfair labor practice cases, the
 Authority has ordered a status quo remedy where to do so "would not
 create a serious disruption of the Activity's operation." /13/
 
    In the present case the General Counsel is not seeking the
 termination of an ongoing training program.  Rather, the General Counsel
 merely seeks to have the agency cease and desist from implementing those
 changes in the program which had the adverse effect of (1) denying GS-7
 and 9 Revenue Agents entry into the pre-classroom phase and (2) denying
 Revenue Agents from entry into the classroom phase based upon their
 performance in the pre-classroom phase.  It doesn't appear to me that
 the granting of this order would result in a serious disruption of the
 Respondent's operation and, therefore, I recommend this proposed order
 be granted.
 
    The General Counsel also requests that Respondent be ordered to
 remedy the adverse effects on all Revenue Agents affected by the changes
 herein by offering to all Revenue Agents who were denied entry into the
 classroom phase of Unit IV Training the option of admission into the
 classroom phase of such training, which is an option these employees
 would have had but for the Respondent's illegal conduct herein.  In my
 opinion, such an order is an eminently reasonable remedy which will not
 create a serious disruption of the Respondent's operations.
 
    In its brief, the Charging Party requests that Respondent be ordered
 to remove indications of failure from the records of all employees
 denied entry into the classroom phase of training because of failure of
 the pre-classroom phase.  But for the Respondent's illegal conduct in
 unilaterally requiring the completion of the pre-classroom phase with
 unilaterally determined requirements for achieving a passing grade, it
 is conceivable that some or all who failed the pre-classroom phase might
 not otherwise have failed a lawfully negotiated program.  In these
 circumstances, the Charging Party's proposal seems like a reasonable
 remedy to redress an unlawful action.
 
    Finally, the General Counsel requests that an appropriate notice be
 posted at all Respondent's locations, nationwide.  I agree that such a
 posting is necessary to remedy the violation herein.
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations, and Section 7118 of the Statute, the
 Authority hereby orders that the Internal Revenue Service (District,
 Region, National Office Unit):
 
    1.  Cease and desist from:
 
          (a) Instituting unilateral changes in the Unit IV Corporate
       Income Tax Training Program for Revenue Agents, including the
       establishment of a pre-classroom phase of Unit IV Training and an
       extension of the classroom phase of Unit IV Training, without
       affording the National Treasury Employees Union, the exclusive
       representative of the affected employees, an opportunity to
       negotiate, to the extent consonant with law and regulations,
       concerning the impact of the changes in the Unit IV Training
       Program on bargaining unit employees and the methods and
       procedures to be utilized in implementing these changes;
 
          (b) Denying GS-7 and GS-9 Revenue Agents entry into the
       pre-classroom phase, and thus the classroom phase, of Unit IV
       Corporate Income Tax Training and denying entry into the classroom
       phase of Unit IV Training to any Revenue Agent based upon his/her
       performance during the pre-classroom phase of Unit IV Training,
       pending negotiations with the National Treasury Employees Union
       concerning the impact of these changes on bargaining unit
       employees and the methods and procedures to be utilized in
       implementing these changes;  and
 
          (c) 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:
 
          (a) Upon request by the National Treasury Employees Union, the
       exclusive representative of its employees, meet and confer, to the
       extent consonant with law and regulations, concerning the impact
       of the changes in the Unit IV Corporate Income Tax Program for
       Revenue Agents on bargaining unit employees, and the methods and
       procedures to be utilized in implementing these changes;
 
          (b) Offer to all Revenue Agents who have been denied entry into
       the classroom phase of Unit IV Training, pursuant to the revisions
       herein, the option of entering the classroom phase of training,
       pending negotiations with the National Treasury Employees Union,
       concerning the impact of the changes in the Unit IV Training
       Program on bargaining unit employees, and the methods and
       procedures to be utilized in implementing these changes;
 
          (c) Remove all indications of failure from the records of all
       employees who were denied entry into the classroom phase of the
       Unit IV Corporate Income Tax Training Program.
 
          (d) Post at all Department of the Treasury, Internal Revenue
       Service facilities and installations, nationwide, copies of the
       attached "Notice to All Employees' marked "Appendix" on forms to
       be furnished by the Federal Labor Relations Authority.  Upon
       receipt of such forms, they shall be signed by the Regional
       Commissioner and shall be posted and maintained by him for a
       period of 60 consecutive days thereafter, in conspicuous places,
       including all bulletin boards and other places where notice to
       employees are customarily posted.  The Regional Commissioner shall
       take reasonable steps to insure that such notices are not altered,
       defaced, or covered by any other material;  and
 
          (e) 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.
 
                                       FRANCIS E. DOWD
                                       Administrative Law Judge
 
 Dated:  May 3, 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
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT unilaterally institute changes in the Unit IV Corporate
 Income Tax Training Program for Revenue Agents, including the
 establishment of a pre-classroom phase of Unit IV Training and an
 extension of the classroom phase of Unit IV Training without affording
 the NATIONAL TREASURY EMPLOYEES UNION, the exclusive representative of
 the affected employees, a reasonable opportunity to meet and confer, to
 the extent consonant with law and regulations, concerning the impact of
 these changes on bargaining unit employees and the methods and
 procedures to be utilized in implementing these changes.  WE WILL, upon
 request by the NATIONAL TREASURY EMPLOYEES UNION, the exclusive
 representative of our employees, meet and confer, to the extent
 consonant with law and regulations, concerning the impact of the changes
 in the Unit IV Corporate Income Tax Training Program for Revenue Agents
 and the methods and procedures to be utilized in implementing these
 changes.  WE WILL NOT deny GS-7 and GS-9 Revenue Agents entry into the
 pre-classroom phase, and thus the classroom phase, of Unit IV Corporate
 Income Tax Training or deny any Revenue Agent entry into the classroom
 phase of Unit IV Training based upon his/her performance during the
 pre-classroom phase of Unit IV Training, pending negotiations with the
 NATIONAL TREASURY EMPLOYEES UNION, concerning the impact of these
 changes on bargaining unit employees and the methods and procedures to
 be utilized in implementing these changes.  WE WILL offer to all Revenue
 Agents who have been denied entry into the classroom phase of Unit IV
 Corporate Income Tax Training, the option of entering the classroom
 phase of training, pending negotiations with the NATIONAL TREASURY
 EMPLOYEES UNION, concerning the impact of the changes in the Unit IV
 Training Program on bargaining unit employees and the methods and
 procedures to be utilized in implementing these changes.  WE WILL remove
 all indications of failure from the records of all employees who were
 denied entry into the classroom phase of training because of failure in
 the pre-classroom phase of the Unit IV Corporate Income Tax Training
 Program.  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.
                                       INTERNAL REVENUE SERVICE
                                       (DISTRICT,
                                       REGION, NATIONAL OFFICE UNIT)
                                       (Agency or Activity)
 
 Dated:  . . .  By:  (Signature) This Notice must remain posted for 60
 consecutive days from the date of posting, and must not be altered,
 defaced, or covered by any other material.  If employees have any
 question concerning this Notice or compliance with its provisions, they
 may communicate directly with the Regional Director for the Federal
 Labor Relations Authority whose address is:  1111 18th Street, NW.,
 Suite 700, Washington, D.C.  20036;  telephone number (202) 653-8452.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ While it does not affect the disposition of this case, the
 Authority notes that it has not "adopted the substantial impact test" as
 suggested by the Judge in n.4 of his Decision.  See U.S. Government
 Printing Office, 13 FLRA No. 39 (1983), decided by the Authority after
 the Judge issued his Decision