15:0829(159)CA - Treasury, IRS, Memphis Service Center and NTEU -- 1984 FLRAdec CA



[ v15 p829 ]
15:0829(159)CA
The decision of the Authority follows:


 15 FLRA No. 159
 
 DEPARTMENT OF TREASURY
 INTERNAL REVENUE SERVICE
 MEMPHIS SERVICE CENTER
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 4-CA-20234
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the 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 Charging Party filed exceptions to the Judge's
 Decision and the Respondent filed an opposition thereto.
 
    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 as modified herein.
 
    The Judge concluded that the Respondent violated section 7116(a)(1)
 and (5) of the Statute /1/ by (1) refusing to negotiate concerning a
 proposal by the Charging Party (the Union) that first consideration for
 vacancies be accorded to certain employees in the Input Perfection
 Branch whose career ladder had been reduced from the GS-5 to the GS-4
 level in the event that management reestablished the GS-5 career ladder,
 and (2) failing to adhere to its agreement with the Union that the
 transfer of seven employees to new positions would be delayed until July
 10, 1982, and instead transferring them in March.  The Authority agrees
 with the Judge's conclusions, noting also the absence of exceptions
 thereto.  Thus, a refusal to bargain based upon the assertion of
 nonnegotiability constitutes a violation of section 7116(a)(1) and (5)
 of the Statute where, as here, the Authority has previously determined
 that essentially identical proposals are negotiable.  /2/ Similarly, the
 Respondent's assertion of nonnegotiability as the basis for revoking its
 previous agreement with the Union to delay the transfer of employees to
 new positions for several months and its transfer of those employees in
 repudiation of such agreement also violated section 7116(a)(1) and (5).
 /3/
 
    As a remedy, the Judge recommended that the Respondent be ordered to
 cease and desist from the unfair labor practices found, to bargain
 concerning the impact and implementation of its decisions, and to post a
 Notice to its employees.  The Judge further noted that the General
 Counsel had not sought a status quo ante remedy, and stated that such a
 remedy would not be appropriate herein.  The Union excepts to the
 Judge's failure to recommend a status quo ante remedy, arguing that such
 a remedy is appropriate, based upon a consideration of the factors for
 determining the appropriateness of such a remedy enunciated by the
 Authority in Federal Correctional Institution, 8 FLRA 604 (1982).
 
    The Authority agrees with the Judge's conclusion that a status quo
 ante remedy is not warranted.  In this regard, it is noted that the
 Respondent gave the Union prior notice of its decision to reduce the
 career ladder and to transfer unit employees, that the Union was
 afforded the opportunity to request bargaining, and that the parties met
 in an effort to resolve their concerns.  It is further noted that, at
 such meetings, the Respondent pointed out to the Union that there was
 not sufficient work available in the Input Perfection Branch to justify
 promoting employees to the GS-5 level, nor enough work to justify
 keeping employees in the position of Tax Examiner in the Receipt and
 Control Branch.  The only bad faith conduct found by the Judge was with
 regard to the more immediate transfer of the Tax Examiners in the face
 of an agreement with the Union to postpone their transfer until July 10,
 1982.  Nevertheless, the Authority notes that the Respondent's operation
 would be significantly disrupted by an order requiring the re-transfer
 of employees to their previous positions despite the absence of
 sufficient work for them to perform and the reestablishment of a career
 ladder mandating their non-competitive promotion to the GS-5 level under
 the foregoing circumstances.  Thus, balancing the nature and
 circumstances of the violation found against the degree of disruption in
 government operations that would be caused by the granting of a status
 quo ante remedy, and applying the various factors set forth in Federal
 Correctional Institution, the Authority concludes that an order
 requiring the Respondent to bargain on the proposal submitted by the
 Charging Party and to give the Charging Party an opportunity to present
 proposals concerning the impact and implementation of the Respondent's
 decisions will adequately remedy the violation in this case and will
 best decisions will adequately remedy the violation in this case and
 will best
 
                                   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 Department of Treasury, Internal Revenue
 Service, Memphis Service Center, shall:
 
    1.  Cease and desist from:
 
    (a) Eliminating the career ladder position and the GS-5 grade level
 for employees in the Input Perfection Branch (Math Error Section),
 without affording the National Treasury Employees Union, the exclusive
 bargaining representative of the Respondent's employees the opportunity
 to negotiate, upon request, concerning the impact and implementation
 thereof, including a proposal for the granting of "first" consideration
 to adversely affected employees in the event that the career ladder is
 reestablished and vacancies for the position(s) are to be filled.
 
    (b) Assigning or transferring employees in the Receipt and Control
 Branch from the position of Tax Examiner to Cash Clerk, without
 affording the National Treasury Employees Union, the exclusive
 bargaining representative of the Respondent's employees, the opportunity
 to negotiate, upon request, concerning the impact and implementation of
 such assignment or transfer on employees adversely affected, including
 the date when such assignment or transfer will become effective.
 
    (c) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative actions in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Notify the National Treasury Employees Union, the exclusive
 bargaining representative of the Respondent's employees, of any proposed
 elimination of the career ladder position and the GS-5 grade level for
 employees in the Input Perfection Branch (Math Error Section) and, upon
 request, bargain with the National Treasury Employees Union concerning
 the impact and implementation thereof, including a proposal for the
 granting of "first" consideration to adversely affected employees in the
 event that the career ladder is reestablished and vacancies for the
 position(s) are to be filled.
 
    (b) Notify the National Treasury Employees Union, the exclusive
 bargaining representative of the Respondent's employees, of any proposed
 assignment or transfer of employees in the Receipt and Control Branch
 from the position of Tax Examiner to Cash Clerk and, upon request,
 bargain with the National Treasury Employees Union concerning the impact
 and implementation of such assignment or transfer on employees adversely
 affected, including the date when such assignment or transfer will
 become effective.
 
    (c) Post at its facility at the Internal Revenue Service, Memphis
 Service Center, Memphis, Tennessee, 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 Director, or his
 designee, 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.
 Reasonable steps shall be taken to insure that such Notices are not
 altered, defaced, or covered by any other material.
 
    (d) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region IV, 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., August 30, 1984
 
                                       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 eliminate the career ladder position and the GS-5 level
 for employees in the Input Perfection Branch (Math Error Section),
 without affording the National Treasury Employees Union, the exclusive
 bargaining representative of our employees, the opportunity to
 negotiate, upon request, concerning the impact and implementation
 thereof, including a proposal for the granting of "first" consideration
 to adversely affected employees in the event that the career ladder is
 reestablished and vacancies for the position(s) are to be filled.
 
    WE WILL NOT assign or transfer employees in the Receipt and Control
 Branch from the position of Tax Examiners to Cash Clerk, without
 affording the National Treasury Employees Union, the exclusive
 bargaining representative of our employees, the opportunity to
 negotiate, upon request, concerning the impact and implementation of
 such assignment or transfer on employees adversely affected, including
 the date when such assignment or transfer will become effective.
 
    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 notify the National Treasury Employees Union, the exclusive
 bargaining representative of our employees, of any proposed elimination
 of the career ladder position and the GS-5 level for employees in the
 Input Perfection Branch (Math Error Section) and, upon request, bargain
 with the National Employees Union concerning the impact and
 implementation of such elimination thereof, including a proposal for the
 granting of "first" consideration to adversely affected employees in the
 event that the career ladder is reestablished and vacancies for the
 position(s) are to be filled.
 
    WE WILL notify the National Treasury Employees Union, the exclusive
 bargaining representative of our employees of any proposed assignment or
 transfer of employees in the Receipt and Control Branch from the
 position of Tax Examiner to Cash Clerk and, upon request, bargain with
 National Treasury Employees Union concerning the impact and
 implementation of such assignment or transfer on employees adversely
 affected, including the date when such assignment or transfer will
 become effective.
                                       (Activity)
                                       By:  (Signature) (Title)
 
    Dated:  . . .
 
    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 IV, Federal Labor Relations Authority, whose address
 is:  1776 Peachtree Street, N.W., Suite 501 - North Wing, Atlanta,
 Georgia 30309 and whose telephone number is (404) 881-2324.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Henry G. Mason, Esq.
    For the Respondent
 
    Barbara S. Liggett, Esq.
    For the General Counsel
 
    Steven P. Flig, Esq.
    For the Charging Party
 
    Before:  WILLIAM NAIMARK
 
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    Pursuant to an Amended Complaint and Notice of Hearing issued on
 August 4, 1982, by the Regional Director for the Federal Labor Relations
 Authority, Atlanta, Georgia Region, a hearing was held before the
 undersigned on August 24, 1982 at Memphis, Tennessee.
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute (herein called the Statute).  It is based on a first
 amended charge filed on July 26, 1982 by the National Treasury Employees
 Union (herein called the Union), against Department of the Treasury,
 Internal Revenue Service, Memphis Service Center (herein called
 Respondent).
 
    The Complaint, as amended at the hearing, alleged in substance that
 (a) on or about November 5, 1981 Respondent notified the Union of its
 intention to discontinue the highest General Schedule (GS) grade in the
 career ladder for a position in the Input Perfection Branch (Error
 Section), and of its intention to transfer seven employees who were GS-3
 Tax Examiners in the unidentified unit to the position of Cash Clerk;
 (b) thereafter on November 17, 1981 the Union proposed, in respect to
 such intended changes, that if management decided to reestablish the
 career ladder at GS-5 level in Input Perfection, employees removed from
 the ladder and stopped at GS-4 level should receive priority /4/
 consideration for any vacancies prior to posting a vacancy announcement;
  (c) that on or about January 21, 1982 Respondent refused to negotiate
 with the Union re such proposal;  that on or about January 7, 1982
 Respondent agreed with the Union that employees in the unidentified unit
 whom it intended to transfer (as set forth in (a) above) would not be
 transferred from Tax Examiner positions to Cash Clerk positions until
 July 10, 1982;  (d) that notwithstanding said agreement, Respondent
 transferred said employees on or about February 1982 without notice to
 the Union - all in violation of Section 7116(a)(1) and (5) of the
 Statute.
 
    Respondent filed its answer dated August 9, 1982 wherein it admitted
 notifying the Union of its intention to discontinue the career ladder
 for the particular position in the Input Perfection Branch, as well as
 its intention to transfer seven employees (Tax Examiners) in the
 unidentified Unit in Receipt and Control to the position of Cash Clerks.
  It also admitted that the Union proposed "priority", and then "first",
 consideration for employees removed from the career ladder if the career
 ladder of GS-5 is reestablished prior to posting a vacancy announcement.
  Respondent denied a refusal to negotiate with the Union re its proposal
 re "priority" or "first" consideration.  It also denied that it agreed
 not to transfer employees from Tax Examiner positions to Cash Clerk
 positions in the Receipt and Control Branch.  Further, Respondent denied
 violating the Statute as alleged.
 
    All parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter, briefs were filed with the
 undersigned which have been duly considered.
 
    Upon the entire record herein, from my observation of the witnesses
 and their demeanor, and from all of the testimony and evidence adduced
 at the hearing, I make the following findings and conclusions:
 
                             Findings of Fact
 
    1.  At all times material herein the Union has been and still is, the
 collective bargaining representative of all professional and
 non-professional employees of the Respondent, excluding management
 officials, supervisors, confidential employees, and certain specified
 classifications.
 
    2.  Both Union and Respondent are parties to a collective bargaining
 agreement which, by its terms, is effective from January 26, 1981 until
 January 26, 1985.
 
    3.  On November 5, 1981 Katy Brown, president of the Union, met with
 David Grisham, Respondent's labor relations technician.  Grisham
 informed the Union official that management intended to make two
 changes:  (a) the transfer of 7 employees in an unidentified unit, who
 were attached to the Receipt and Control Branch and classified as GS-3,
 to the position of Cash Clerk (GS-3).  The 7 employees in Receipt and
 Control (R&C), were on a career ladder to a GS-4;  (b) an elimination of
 the top grade (GS-5) in the career ladder for 23 employees in the Math
 Error Section of the Input Perfection Branch (IP).  Said employees, who
 were classified as GS-4, were in a career ladder position which enabled
 them to become a GS-5 without competition.  The new proposal would
 terminate their level at GS-4, and a GS-5 could not be attained without
 competition.  The duty station of these employees would remain the same.
 
    4.  The proposed transfer of the seven individuals in Receipt and
 Control was occasioned by a reduction in the work thereat;  the
 elimination of the GS-5 level in Input and Perfection resulted from
 insufficient work at that grade to permit all employees in the Math
 Error Section to remain thereat.  /5/
 
    5.  By letter dated November 17, 1981 Union President Katy Brown
 advised Grisham that the Union desired to negotiate the impact and
 implementation of the two proposed changes.  The Union also proposed
 that:  (a) if management re-established the GS-5 career ladder in Input
 Perfection, employees taken from the ladder and stopped at GS-4 level
 should receive priority consideration for any vacancies prior to posting
 a vacancy announcement;  (b) employees in Receipt and Control should
 receive priority consideration for all vacancies in the unidentified
 unit prior to posting a vacancy announcement;  (c) employees in both
 branches should receive continuous priority consideration for their old
 positions until the affected employees are afforded the opportunity to
 be reassigned to their previous positions.
 
    6.  The parties met on several occasions in December 1981.  They
 discussed the proposed changes generally, and Grisham told Brown that
 Respondent deemed the "priority" consideration, as suggested by the
 Union, was improper - that it was illegal and contrary to FPM and IRM
 regulations.  At the December 16, 1981 meeting the parties agreed to
 submit final offers to each other in writing by January 6, 1982.
 
    7.  By letter dated January 6, 1982 /6/ Brown notified Billy
 Lunsford, Chief Labor Relations for Respondent, that, in order to
 resolve the conflict, the Union offered to change the term "priority"
 consideration to "first" consideration.
 
    8.  Various representatives of both parties, including Brown,
 Grisham, and Lunsford, met on January 7 and discussed the proposed
 changes.  Brown and the Union representatives expressed concerns to
 management that it was unfair to require employees, who would be
 transferred, to recompete for positions previously held.  The Union
 agents suggested to Respondent that the 23 employees in Input Perfection
 and 7 in Receipt and Control should be considered before management
 "went outside or used any other means to fill the vacancies." Lunsford's
 testimony reflects, and I find, that no obligation was imposed, under
 the Union proposal, to select any one of these individuals or put him
 back on the job.
 
    Lunsford stated he saw no difference between granting "priority" or
 "first" consideration since it involved putting employees back in a job
 without competition.  He told the Union representatives it was illegal
 to select someone on that basis and that Respondent deemed the proposed
 nonnegotiable.  /4/ Management offered to delay until July 10, 1982
 before reassigning the Receipt and Control employees.  Lunsford
 explained that perhaps the workload might increase and the transfers
 might not be required.  Brown accepted the offer re delaying the
 reassignments until July 10.
 
    9.  In regard to the final understanding between the parties re the
 deferment of the transfer of R&C employees until July, there is a
 conflict of testimony.  Grisham testified that management advised Brown
 at the January 7 meeting that since no agreement was reached on the
 "first" consideration issue involving IP employees, the agreement to
 defer the transfer was not binding on Respondent.  He stated that the
 parties always, as a past practice, negotiated several issues on a
 "package" basis.  Accordingly, Grisham testified, the offer to defer the
 transfers was withdrawn.
 
    Contrariwise, Brown testified management did not state at the meeting
 that it would not agree to the deferment because of the failure to
 resolve the dispute re the IP career ladder employees;  and she insisted
 Respondent did not withdraw its proposal at the meeting on January 7.
 
    Neither Lunsford nor Eaton testified that management expressly
 declared the proposed transfer of R&C employees was part of the whole
 package.  Lunsford testified that since there was no resolution of the
 IP problem, management indicated it might consider going ahead with the
 changes;  that he didn't remember ending the meeting with a commitment
 not to implement the transfers till July.  Eaton testified she thought
 it was understood the transfers were part of the whole package, but she
 did not recall if it was expressed to the Union.
 
    The foregoing convinces me, and I find, that the Respondent did not
 clearly manifest to the Union on January 7 that the agreement to defer
 the transfer of the seven R&C employees was contingent upon an agreement
 with respect to the "first" consideration issue.  Further, I credit
 Brown in this respect and find management did not revoke on January 7
 its agreement to hold the transfers in abeyance until July 10.
 
    10.  In a letter dated January 11 Union agent Brown notified Lunsford
 that since the parties could not reach an agreement, the Union would
 seek a mediator to resolve the dispute and also invoke the services of
 the Federal Service Impasse Panel.
 
    11.  At Respondent's request, Brown met with Henry H. Philcox, the
 employer's assistant director, on January 14 and Philcox told the Union
 President that he needed more time to consider the matter.  Brown agreed
 to a week's delay so that the assistant director could review the file.
 The parties met on January 20 at which time Philcox informed the Union
 that Brown's proposals, and the issues, were nonnegotiable;  that no
 legal options were open to Respondent, and Respondent could not give the
 employees priority consideration.
 
    12.  In a letter dated January 22, Brown requested that Philcox set
 forth in writing specifically which issues he considered were not
 bargainable by the Respondent, and that the reason be stated by the
 employer.
 
    13.  In an undated letter, which was received by Brown on January 28,
 Philcox advised the Union agent that Respondent deemed the priority
 consideration, proposed by Brown, not to afford management a legal
 option and was thus deemed nonnegotiable.  Further, Philcox stated
 therein that Respondent would implement its decision to reassign the
 Input Perfection as well as Receipt and Control employees;  that there
 must be sufficient work at full performance to continue the ladders, and
 therefore Respondent would make the reassignment and discontinue the
 ladders.
 
    14.  On March 21 the reassignments were made by Respondent of 7
 employees attached to Receipt and Control as well as 23 employees in the
 Input Perfection Branch.  /8/
 
    15.  Brown attended a meeting on June 8 which management called for
 R&C employees.  Respondent informed them of a potential reorganization
 which would become effective in October 1982.  At the close of the
 meeting Union agent Brown asked how the new reorganization would affect
 the seven employees who were to be transferred and employed as cashier
 clerks.  The management officials, Carol Stewart and Jim Sheeley,
 replied that the transfers had been effected in February upon the
 instructions of Grisham.
 
                                Conclusions
 
    Both the General Counsel and the Charging Party contend that
 Respondent violated Section 7116(a)(1) and (5) in the following
 respects:  (1) by refusing to negotiate concerning the Union's proposal
 that "first" consideration for vacancies be given to employees in the
 Input Perfection Branch, adversely affected by Respondent's abolishment
 of the career ladder position to a GS-5, in the event the same career
 position be reestablished;  /9/ (2) by breaching an agreement, made on
 January 7, 1982, to delay until July 10, 1982 the transfer of the seven
 Tax Examiners in the Receipt and Control Branch to Cash Clerks - and
 thereby failing to bargain in good faith in respect to the said
 transfers.
 
    Respondent insists that the Union's proposal re the granting of
 "first" consideration to the 23 Input Perfection employees, in respect
 to vacancies if the career ladder should be reestablished, is not
 negotiable.  It contends that the Union was, in fact, seeking "priority"
 consideration for these employees;  that "priority" consideration, under
 the Federal Personnel Manual (335. A-3c), as well as the Internal
 Revenue Manual (0335.251), applies to instances where competitive
 procedures are suspended to correct an injustice due to a violation of
 merit promotion procedures.  Since the instant matter just involved the
 discontinuance of the career ladder, it did not fall within the confines
 of a situation justifying "priority" consideration - and to do so would
 run counter to the rules and regulations.
 
    The employer argues further that the competitive promotion plan
 applies to filling positions, by promotion or reassignment, to a
 position with promotion potential beyond that of the employee's current
 positions (Internal Revenue Manual 0335.221 (1)(c));  that the contract
 between the parties requires competition to obtain a career ladder job.
 It is contended that competitive procedures must be followed to promote
 or reassign the affected employees back to any reestablished career
 ladder position;  that the Union is attempting to eliminate these
 procedures.  Thus, Respondent maintains, the proposal infringes upon its
 reserved right to make selections, when filling vacancies, among
 properly ranked and certified candidates or any appropriate service -
 all as sanctioned by Section 7106(a)(2)(C) of the Statute.
 
    In respect to the alleged agreement not to transfer the seven R&C
 employees till July 10, Respondent avers that there was no such binding
 agreement consummated.  It insists that the offer to defer the transfer
 was withdrawn at the January 7 meeting since the Union continued to
 press for "priority" consideration;  that binding agreements between the
 parties are never reached on a piecemeal basis, and since they could not
 agree re the "first" consideration issue, the employer withdrew its
 unilateral offer to defer the transfers of these employees.
 
    Presented for determination herein are these primary issues:  (1)
 whether the proposal by the Union re "first" consideration for the 23
 Input Perfection employees, in respect to vacancies occurring if the
 career ladder position is reestablished, is negotiable so as to require
 Respondent to bargain thereon;  (2) whether Respondent's revocation of
 an agreement, made at the January 7 meeting, to defer transferring 7
 employees in the Receipt and Control Branch until July 10 is reflective
 of bad faith bargaining in this regard at the said meeting.
 
    (1) It is not denied that an employee in the public sector has
 complete authority under the Statute in regard to filling positions in
 accordance with applicable law.  Thus, Section 7106(a)(2)(C) of the
 Statute provides as follows:
 
    7106.  Management Rights
 
          (a) Subject to subsection (b) of this section, nothing in this
       chapter shall affect the authority of any management official of
       any agency -
 
          (2) in accordance with applicable laws -
 
          (C) with respect to filling positions, to make selections for
       appointment from -
 
          (i) among properly ranked and certified candidates for
       promotion;  or
 
          (ii) any other appropriate service
 
    A careful review of the entire record herein convinces me that the
 Union proposal re "first" consideration for the 23 Input Perfection
 employees, in the event of a reestablished career ladder for this
 position, was not an infringement of the foregoing management rights
 provisions.  Contrary to Respondent's contention, I do not agree that
 the Union's proposal in this regard was bottomed upon "priority"
 consideration for those employees.  In her letter of January 6, and
 during the meeting on January 7, Brown announced to management that the
 Union sought first consideration for them.  The said letter explicitly
 renounced "priority" consideration.  Moreover, the Union officials
 explained at the said meeting that the proposal involved considering
 those employees, whose career ladder was abolished, before management
 went outside or used other means to fill vacancies if the career ladder
 was reinstituted.
 
    In American Federation of Government Employees, AFL-CIO, Local 1884
 and Defense Mapping Agency, Hydrographic Topographic Center, Providence,
 Rhode Island, 4 FLRA No. 33 the Union proposed to management, inter
 alia, that "Consideration in filling vacant positions will be given
 first to employees within the Providence Office, the minimum area of
 consideration and to voluntary applicant within DMA" (underscoring
 supplied).  The Authority held that this proposal was within the
 agency's duty to bargain under Section 7106(b)(2), /10/ and that it did
 not violate Section 7106(a)(2)(C) of the Statute.  It concluded that
 this proposal was akin to that presented to the Authority in American
 Federation of Government Employees, AFL-CIO, Local 331 and Veterans
 Administration Hospital, Perry Point, Maryland, 2 FLRA No. 59.  In that
 case the Authority determined that a union proposal requiring
 consideration in filling vacant positions first be given to bargaining
 unit employees was within the duty to bargain under the Statute.
 
    In determining whether a proposal of this nature infringes upon
 management's rights, the Authority has been concerned whether the
 agency's right of selection is abridged by virtue thereof.  Thus, in
 National Treasury Employees Union - U.S. Customs Service, Region IX, 2
 FLRA No. 8 (1979), the Authority was confronted with this issue when the
 union proposed, inter alia, as follows:
 
          "Article 16, Section 3:
 
          A. The employer agrees that when an employer has been
       reassigned due to the abolishment of his/her position, he/she will
       be considered first if that position is reestablished within one
       (1) year and he/she applies in thus fifteen (15) days after
       written notification is given to the employee of its
       reestablishment" (underscoring supplied).
 
    The Office of Personnel Management (OPM) contended that since this
 clause would require consideration of such employees prior to others who
 have a statutory, regulatory or FPM granted right to be considered, it
 conflict with mandatory civil service regulations.  The Authority
 concluded the proposal did not supersede or limit consideration of
 others who were entitled to priority or special consideration under
 civil service laws or regulations;  and that the proposal neither
 limited consideration to former incumbents of the reestablished position
 nor restricted the agency from exercising its right to select from any
 appropriate service.  Likewise, in the case at bar, the Union's proposal
 that Respondent consider the 23 Input and Perfection employees first if
 the career ladder is reestablished was not intended to, and does not,
 limit management's consideration of those entitled to priority or
 special consideration.  Neither does the clause restrict Respondent's
 right to select from any appropriate source in filling vacancies.  /11/
 Accordingly, I conclude the Union's proposal herein requiring Respondent
 to accord "first" consideration for vacancies to the 23 Input Perfection
 employees whose career ladder was terminated, in the event of a
 reestablishment of the position, was negotiable.  Further, a refusal to
 bargain thereon was, on the part of Respondent, violative of Section
 7116(a)(1) and (5) of the Statute.
 
    (2) The obligation to negotiate in good faith re conditions of
 employment is delineated under Sections 7103(a)(12) and 7114(b) of the
 Statute.  While not quarreling with the obligation so imposed upon it,
 Respondent resists any imputation of bad faith bargaining on its part
 concerning the transfer of the 7 employees in the R&C Branch to Cash
 Clerks.  It takes the position that any agreement which it made to defer
 the transfer to July 10 was properly revoked at the end of the January 7
 meeting with the Union.  The basis for its revocation, Respondent
 declares, was the failure of the parties to agree on the Union's
 proposal re the 23 Input Perfection employees.  It is asserted that the
 negotiations on January 7 were undertaken on a "package" basis, i.e. no
 agreement would be valid unless both proposals or issues were resolved.
 Since the Respondent would not agree to "first" consideration for the IP
 employees, the employer contends it properly withdrew the offer to defer
 the transfer of the R&C employees.
 
    Whether good faith bargaining has taken place during negotiation
 sessions must necessarily be based on the total context of what has
 occurred between parties during the course of their proposals and
 counterproposals.  Further, while evidence of bad faith bargaining may
 be found in withdrawal of a tentative or previous agreement, such action
 does not necessarily establish per se an absence of good faith.  See and
 compare Division of Military and Naval Affairs, State of New York,
 Albany, New York 7 FLRA No. 51.
 
    Upon reviewing the evidence in respect to this particular issue.  I
 am persuaded that Respondent did not negotiate in good faith as to the
 implementation of the transfer of the 7 R&C employees.  As heretofore
 found, management did not explicitly declare to Brown that the agreement
 to defer the transfer till July 10 was conditioned upon resolving the
 "first" consideration issue involving the 23 IP employees.  Further, in
 accordance with my finding in this regard, management did not withdraw
 its proposal at the January 7 meeting by so advising the Union
 representative.  While it did so in the letter received on January 28 by
 Brown, this action negated its prior commitment.  Moreover, this letter
 lends support for the conclusion that Respondent had not revoked its
 proposal prior thereto.  Since the Union was foreclosed from bargaining
 on the matter after the parties had agreed to the deferment, I conclude
 that the employer displayed bad faith in failing to adhere to its
 agreement and labeling the matter as nonnegotiable.  Although Respondent
 was privileged to transfer or reassign its employees as an inherent
 management right, it was obligated to bargain re the impact and
 implementation thereof.  I conclude it failed to do so in violation of
 Section 7116(a)(1) and (5) of the Statute.  Federal Prison System,
 Correctional Institution, Petersburg, Virginia, 8 FLRA No. 111.
 
    Having found that Respondent violated Section 7116(a)(1) and (5) of
 the Statute, I recommend the Authority adopt the following Order:
 
                                ORDER /12/
 
    Pursuant to Section 7118(a)(7) of the Federal Service
 Labor-Management Relations Statute and Section 2423.29 of the Rules and
 Regulations, the Authority hereby orders that the Department of
 Treasury, Internal Revenue Service, Memphis Service Center, shall:
 
    1.  Cease and desist from:
 
          (a) Eliminating the career ladder position and the GS-5 grade
       level for employees in the Input Perfection Branch (Math Error
       Section), without first notifying the National Treasury Employees
       Union, the exclusive bargaining representative, and affording it
       the opportunity to negotiate, upon request, concerning the
       granting of "first" consideration to said employees in the event
       the career ladder is reestablished and vacancies for the position
       will be filled, and concerning both the procedures which
       management will observe in implementing such elimination of the
       career ladder position as well as appropriate arrangements for
       those employees adversely affected.
 
          (b) Assigning or transferring employees in the Receipt and
       Control Branch from the position of Tax Examiner to Cash Clerk,
       without first notifying the National Treasury Employees Union, the
       exclusive bargaining representative, and affording it the
       opportunity to negotiate, upon request concerning the date when
       such assignment or transfer will become effective, and concerning
       both the procedures which management will observe in implementing
       such assignment or transfer as well as appropriate arrangements
       for employees adversely affected.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Notify the National Treasury Employees Union, the exclusive
       bargaining representative of any proposed elimination of the
       career ladder position and the GS-5 grade level for employees in
       the Input Perfection Branch (Math Error Section), and, upon
       request, bargain with the National Treasury Employees Union
       concerning the granting of "first" consideration to such employees
       for the filling of vacancies if the career ladder for the position
       is reestablished and the GS-5 level is reinstituted, and
       concerning both the procedures which management will observe in
       implementing such elimination as well as appropriate arrangements
       for employees adversely affected.
 
          (b) Notify the National Treasury Employees Union the exclusive
       bargaining representative of any proposed assignment or transfer
       of employees in the Receipt and Control Branch from the position
       of Tax Examiner to Cash Clerk, and, upon request, bargain with the
       National Treasury Employees Union concerning the date when such
       assignment or transfer will become effective, and concerning both
       the procedures which management will observe in implementing such
       assignment or transfer as well as appropriate arrangements for
       employees adversely affected.
 
          (c) Post at its facility at the Internal Revenue Service,
       Memphis Service Center, Memphis, Tennessee, 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
       Director and shall be posted and maintained by him for 60
       consecutive days thereafter in conspicuous places, including all
       bulletin boards and other places there notices to employees are
       customarily posted.  The Director shall take reasonable steps to
       insure that such notices are not altered, defaced, or covered by
       any other material.
 
          (d) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region IV, in writing,
       within 30 days from the date of this Order, as to what steps have
       been taken to comply herewith.
 
                                       WILLIAM NAIMARK
                                       Administrative Law Judge
 
    Dated:  January 28, 1983
    Washington, DC
 
 
 
                                 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 eliminate the career ladder position and the GS-5 grade
 level for employees in the Input Perfection Branch (Math Error Section),
 without first notifying the National Treasury Employees Union, the
 exclusive bargaining representative, and affording it the opportunity to
 negotiate, upon request, concerning the granting of "first"
 consideration to said employees in the event the career ladder is
 reestablished and vacancies for the position will be filled, and
 concerning both the procedures which management will observe in
 implementing such elimination of the career ladder positions as well as
 appropriate arrangements for those employees adversely affected.
 
    WE WILL NOT assign or transfer employees in the Receipt and Control
 Branch from the position of Tax Examiners to Cash Clerk, without first
 notifying the National Treasury Employees Union, the exclusive
 bargaining representative, and affording it the opportunity to
 negotiate, upon request, concerning the date when such assignment or
 transfer will become effective, and concerning both the procedures which
 management will observe in implementing such assignment or transfer, as
 well as 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 notify the National Treasury Employees Union, the exclusive
 bargaining representative, of any proposed elimination of the career
 ladder position and the GS-5 grade level for employees in the Input
 Perfection Branch (Math Error Section), and, upon request, bargain with
 the National Treasury Employees Union concerning the granting of "first"
 consideration to such employees for the filling of vacancies if the
 career ladder for the position is reestablished and the GS-5 level is
 reinstituted, and concerning both the procedures which management will
 observe in implementing such elimination as well as appropriate
 arrangements for employees adversely affected.
 
    WE WILL notify the National Treasury Employees Union, the exclusive
 bargaining representative, of any proposed assignment or transfer of
 employees in the Receipt and Control Branch from the position of Tax
 Examiner to Cash Clerk, and, upon request, bargain with National
 Treasury Employees Union concerning the date when such assignment or
 transfer will become effective, and concerning both the procedures which
 management will observe in implementing such assignment or transfer as
 well as appropriate arrangements for employees adversely affected.
                                       (Agency or Activity)
                                       By:  (Signature)
 
    Dated:  . . .
 
    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 4, Federal Labor Relations Authority, 1776 Peachtree
 Street, NW., Suite 501 - North Wing, Atlanta, Georgia 30309 and whose
 telephone number is (404) 881-2324.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1) and (5) provides:
 
          Sec. 7116.  Unfair labor practices
 
          For the purpose of this chapter, it shall be an unfair labor
       practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                .  .  .  .
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter(.)
 
 
    /2/ See Department of the Air Force, U.S. Air Force Academy, 6 FLRA
 548 (1981), aff'd, 717 F.2d 1314 (10th Cir. 1983).  See also Veterans
 Administration, Veterans Administration Regional Office (Buffalo, New
 York), 10 FLRA 167 (1982).
 
 
    /3/ Id.  See also Great Lakes Service Center, Social Security
 Administration, Department of Health and Human Services, Chicago,
 Illinois, 9 FLRA 499 (1982), and cases cited therein.
 
 
    /4/ It is also alleged that the Union, on January 6, 1982, amended
 its proposal by substituting the word "first" for the word "priority".
 
 
    /5/ More than 23 people were attached to this section in the Input
 Perfection Branch, but the career ladder would stop at GS-4 for these 23
 employees.  The latter individuals would also be required to recompete
 in order to return to the career ladder.
 
 
    /6/ Unless otherwise indicated, all dates hereinafter mentioned
 occurred in 1982.
 
 
    /7/ Neither party sought to introduce at the hearing a copy of the
 collective bargaining agreement, and none was available thereat.
 However, the parties agreed that the contract speaks of priority
 consideration where someone has not received proper consideration for a
 promotion and the priority consideration is used to remedy that
 situation.  Respondent insisted that contractual provision precludes
 granting first consideration, as proposed by the Union, and the latter
 disagreed.
 
 
    /8/ The Input Perfection employees were technically transferred as a
 result of a new position description, although they remained in the same
 job.  The position description for the R&C Tax Examiners did not change,
 but the Respondent did remove the GS-5 step from that position.  The
 seven R&C examiners attached to R&C, however, were reassigned as
 cashier's clerks.
 
 
    /9/ The brief of the General Counsel argues that the refusal by
 Respondent to negotiate this proposal - "first" consideration - in
 regard to employees in the Receipt and Control branch is also violative
 of the Act.  It is noted that the Charging Party's brief comments that
 the proposal is apparently no longer the subject of any dispute herein.
 Since the complaint alleges only a refusal to negotiate concerning
 "first" consideration for employees adversely affected who are in the
 Input Perfection branch, conclusions by the undersigned as to this issue
 will be confined to the 23 employees in the Math Error Section of this
 latter branch.
 
 
    /10/ This particular statutory language provides, under "Management
 rights," that "nothing in this section shall preclude any agency and any
 labor organization from negotiating-- procedures which management
 officials of the agency will observe in exercising any authority under
 this section."
 
 
    /11/ It is also asserted by Respondent that any reassignment of these
 employees is subject to the merit promotion procedures, and that the
 negotiated agreement require competition to get a career ladder job.
 Thus, it argues, the proposal is contrary to the plan and that promotion
 procedures must be followed.  Under Section 7106(a)(2)(C) management has
 the right, in filling positions to select from "among properly ranked
 and certified candidates for promotion or any other appropriate
 service." Irrespective of whether a reestablishment of the career ladder
 herein is viewed as a reassignment or promotion.  I am constrained to
 conclude these employees have already competed to obtain a career ladder
 position.  No recompeting should be required before Respondent may grant
 "first" consideration to them, and I conclude such consideration does
 not violate government-wide regulations.  See FPM Chapter 335.5
 subchapter 1-5b. dealing with applicability of competition procedures.
 
 
    /12/ Note is taken that, at the hearing, General Counsel stated that
 a status quo remedy was not sought herein.  The undersigned agrees that
 such