16:0904(124)CA - IRS (District, Region, National Office Units) and NTEU -- 1984 FLRAdec CA



[ v16 p904 ]
16:0904(124)CA
The decision of the Authority follows:


 16 FLRA No. 124
 
 INTERNAL REVENUE SERVICE
 (DISTRICT, REGION, NATIONAL
 OFFICE UNITS)
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES
 UNION
 Charging Party
 
                                            Case Nos. 3-CA-2206
                                                      3-CA-2876
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 certain unfair labor practices, and recommending that the Respondent be
 ordered to cease and desist therefrom and take certain affirmative
 action.  Thereafter, the Respondent and the Charging Party filed
 exceptions to the Judge's Decision.
 
    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 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.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the Internal Revenue Service shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to negotiate in good faith with National
 Treasury Employees Union, its employees' exclusive collective bargaining
 representative, by declaring nonnegotiable the proposals made by
 National Treasury Employees Union on March 26, 1981, as explained to the
 Federal Service Impasses Panel on April 7, 1981 by Frank Ferris,
 National Treasury Employees Union's Director of Negotiations, concerning
 staffing the Commodity Tax Shelter and Windfall Profit Tax programs.
 
    (b) 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 action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Upon request of National Treasury Employees Union, the employees'
 exclusive collective bargaining representative, negotiate, to the extent
 consonant with law and regulations, concerning staffing of the Commodity
 Tax Shelter and Windfall Profit Tax programs.
 
    (b) Post at its National Office, Regional Offices and District
 Offices copies of the attached Notice, on forms to be furnished by the
 Federal Labor Relations Authority.  Upon receipt of such forms they
 shall be signed by the Commissioner, Internal Revenue Service, or his
 designee, and shall be posted and maintained by him for 60 consecutive
 days thereafter, in conspicuous places, including bulletin boards and
 all 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.
 
    (c) Pursuant to section 2423.30 of the Federal Labor Relations
 Authority's Rules and Regulations, notify the Regional Director of
 Region III, Federal Labor Relations Authority, in writing, within 30
 days from the date of this Order, as to what steps have been taken to
 comply herewith.
 
    Issued, Washington, D.C., December 18, 1984
 
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       /s/ Ronald W. Haughton
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail and refuse to negotiate in good faith with National
 Treasury Employees Union, our employees' exclusive collective bargaining
 representative, by declaring nonnegotiable the proposals made by
 National Treasury Employees Union on March 26, 1981, as explained to the
 Federal Service Impasses Panel on April 7, 1981 by Frank Ferris,
 National Treasury Employees Union's Director of Negotiations, concerning
 staffing the Commodity Tax Shelter and Windfall Profit Tax programs.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce any employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL upon request of National Treasury Employees Union, our
 employees' exclusive collective bargaining representative, negotiate, to
 the extent consonant with law and regulations, concerning staffing of
 the Commodity Tax Shelter and Windfall Profit Tax programs.
                                       (Agency or 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) 653-8452.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    INTERNAL REVENUE SERVICE
    (DISTRICT, REGION, NATIONAL
    OFFICE UNITS)
                                Respondent
 
    and
 
    NATIONAL TREASURY EMPLOYEES UNION
                              Charging Party
 
                                       Case Nos. 3-CA-2206
                                                 3-CA-2876
 
    William L. Bransford, Esq. and
    David Pryor, Esq.
    For the Respondent
 
    Joseph V. Kaplan, Esq.
    For the Charging Party
 
    Clara A. Williamson, Esq.
    For the General Counsel
 
    Before:  SALVATORE J. ARRIGO
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 7101, et seq., (herein referred to as the Statute).
 
    Upon unfair labor practice charges filed by the National Treasury
 Employees Union (herein referred to as the Union or NTEU) on March 31,
 1981 and September 9, 1981 against the Internal Revenue Service (herein
 referred to as Respondent or IRS), the General Counsel of the Authority,
 by the Regional Director for Region 3, issued an Order Consolidating
 Cases, Complaint and Notice of Hearing on October 9, 1981.  The
 Complaint alleged that on or about March 26, 1981, and thereafter,
 Respondent failed and refused to bargain in good faith with the Union
 concerning selection procedures for the staffing of work groups for
 Respondent's Windfall Profits Tax Program and Commodity Tax Shelter
 Program.
 
    A hearing on the Complaint was conducted on December 8, 1981 in
 Washington, D.C. at which time all parties were represented by counsel
 and afforded full opportunity to adduce evidence, call, examine and
 cross-examine witnesses, and argue orally.  Excellent briefs were filed
 by counsel for all parties.
 
    Upon the entire record in this matter, my observation of the
 witnesses and their demeanor, and from my evaluation of the evidence, I
 make the following findings of fact, conclusions of law and
 recommendations:
 
                           Chronology of Events
 
    At all times material herein, the Union has been the exclusive
 collective bargaining representative for various professional employees
 located in Respondent's District, Regional and National offices.
 
    The Commodity Tax Shelter Program
 
    On August 11, 1980 Respondent notified the Union of its intent to
 develop and implement Commodity Tax Shelter (CTS) work groups within the
 agency's Examination Division which would specialize in tax shelter
 revenue issues.  These work groups were to be established in 9 different
 District offices around the country and included a total of 14 revenue
 agents in each group.  The notice stated it was anticipated the program
 would be operational by January 1, 1981.  Respondent also stated it
 intended to staff bargaining unit revenue agent vacancies in these
 groups in the following manner:
 
          "1.  Solicit volunteers from qualified revenue agents and
       reassign from among those volunteers.
 
          "2.  If enough qualified volunteers are not available . . . use
       MDA III Article 7 competitive procedures.
 
          "3.  If enough qualified revenue agents are not identified
       through #1 and #2 above, the remaining positions in the groups
       will be filled by reassignment."
 
    The Union was invited to submit its proposals in writing by August
 29, 1981 if it wished to negotiate the matter and was offered an
 opportunity to be briefed on the subject.
 
    By letter dated August 20, 1981 the Union requested negotiations on
 the CTS program and on August 21 the Union received a briefing by IRS.
 During this meeting the Union's representative, Frank Ferris, NTEU
 Director of Negotiations, explained the Union's concerns relative to the
 establishment of these groups including the manner of selecting
 employees and their work locations.  At this time IRS again notified
 Ferris that the CTS groups were to be operational by January 31, 1981.
 
    On August 29 the Union submitted a hand-written proposal on filling
 CTS vacancies.  The proposal stated, in relevant part:
 
          "1.  Vacancies in these groups will be filled as follows:
 
          "a.  The employer will solicit volunteer applications from
       qualified revenue agents in all IRS offices.  Solicitation will be
       done by a vacancy announcement which details the specific
       difference between this type of examination and normal examination
       work, e.g. little or no corporate tax return work.
 
          Unless the employer fills the vacancies with the most senior
       applicants (IRS seniority) or chooses all who volunteer, it will
       then use competitive contract procedures to select for the
       vacancies.
 
          Where not enough employees volunteer, the employer, if it
       wishes to fill the remaining vacancies, will reassign the least
       senior agent in that appointing office, unless there is just cause
       not to do so.
 
                                   * * *
 
          "3.  After two years in this group any employee who wishes to
       be reassigned away from this work will be given every
       consideration by management to reassign him/her to more acceptable
       tasks.
 
          "4.  This agreement may be renegotiated any time after it has
       been in effect for two years.
 
          "5.  Any provision of this agreement may be grieved under the
       master contract . . . "
 
    The Windfall Profit Tax Program
 
    By letter dated June 19, 1980 IRS notified the Union of its intent to
 implement a plan which would establish work groups in some parts of the
 country for administering the Crude Oil, Windfall Profit Tax Act of 1980
 (WPT).  The letter indicated that examination of tax returns associated
 with the program would begin on a nationwide basis between November 1980
 and February 1981 although a limited number of returns would be examined
 in the Southwest Region beginning in July 1980 by revenue agents who had
 a background in the oil and gas industry.  Detailed information on the
 program was to be supplied to the Union around August 1, 1980.
 
    Further notice was supplied NTEU when on August 29, 1980 IRS informed
 the Union of its intention to establish "energy" groups which would
 affect all regions with the major impact falling upon the Southwest and
 Western regions.  The ultimate decision as to whether a group would be
 established to perform the work would rest with each individual region.
 IRS stated it intended to select revenue agents for the WPT program by:
 
          "1.  Soliciting volunteers and giving them first consideration.
 
          "2.  Filling positions either by reassignment or competitive
       procedures if enough qualified agents are not identified through
       solicitation of volunteers."
 
    In this communication the Union was advised that selected agents
 would begin training sometime in October 1980 and it was anticipated
 that WPT groups would be operational by February 1981.  The Union was
 also informed that if it wished to negotiate on the matter NTEU should
 present written proposals to IRS by September 15, 1980, and IRS would be
 available to brief the Union on the subject.
 
    Representatives of the Union, including Ferris, and Respondent's
 representatives met on September 11 at which time IRS briefed the Union
 on the establishment of WPT groups and its desire to have the program
 implemented immediately.  Ferris stated that wished to submit proposals
 on the matter and requested Respondent delay implementation until he did
 so.
 
    Subsequent Conduct Concerning Both Programs
 
    On September 15, 1980 the Union submitted identical proposals
 relative to staffing the CTS and WPT groups.  The proposals used the
 exact same language as the Union's August 29 hand-written proposal
 relating to the formation of CTS groups, supra.
 
    On September 17, 1980 IRS submitted its counter-proposals to the
 Union.  Respondent's proposals regarding the CTS program provide in
 relevant part:
 
          "1.  Management intends to fill bargaining unit revenue
       vacancies in these groups in the following manner:
 
          "A.  Solicit volunteers from qualified revenue agents and
       reassign from among those volunteers.
 
          "B.  If enough qualified volunteers are not available,
       Examination Division intends to use MDA III Article 7 competitive
       procedures.
 
          "C.  If enough qualified revenue agents are not identified
       through 1A and 1B above, the remaining positions in these groups
       will be filled by reassignment.
 
                                   * * *
 
          "3.  Since moving expenses will not be authorized, management
       intends to solicit qualified volunteers for reassignment within
       the immediate geographic vicinities of the nine (9) group
       locations . . . "
 
    As to the WPT program, Respondent's proposals stated, in relevant
 part:
 
          "1.  Selection of revenue agents to examine WPT cases will be
       made in the following manner:
 
          "A.  Solicit volunteers and give them first consideration.
 
          "B.  If enough qualified revenue agents are not identified
       through solicitation of volunteers, positions will be filled
       either by reassignment or competitive procedures.
 
                                   * * *
 
          "3.  Solicitation of volunteers for reassignment will occur
       district-wide for those locations where the WPT examination
       workload has been identified.  If applicable, moving expenses will
       be provided in accordance with the Internal Revenue Manual . . . "
 
    Both the CTS and WPT proposals offered by IRS contained the following
 language:
 
          "7.  All provisions of this agreement are subject to the
       current grievance procedures as are terms of regulations of the
       Employer covering personnel policies, practices and matters
       affecting work conditions, insofar as the subject matter of such
       matters would be grievable under the Internal Revenue
       administrative grievance procedure.  (Note:  upon the
       implementation of a new consolidated contract the scope of the
       grievance procedure contained therein will be precedent over the
       above)."
 
    On September 17, 1980 Ferris and Jack Ahern, a Labor Relations
 Specialist for Respondent, discussed the proposals by telephone.  Ferris
 explained that NTEU's proposals were designed to give IRS a choice in
 using seniority or competitive procedures to staff the CTS and WPT
 groups.  While indicating that the Union favored the use of seniority in
 staffing the groups, Ferris acknowledged that he could not force IRS to
 select seniority but could propose a choice consistent with a union
 proposal which the Federal Labor Relations Authority previously found
 negotiable in American Federation of Government Employees, AFL-CIO and
 Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2
 FLRA 604 (1980), at 610 (herein Wright-Patterson).  /1/ Specifically,
 Ferris explained that the Union's proposal covered two situations:
 where there existed more volunteers than vacancies, IRS had the choice
 of filling the positions beginning with the most senior volunteer or
 using competitive procedures;  where more vacancies than volunteers
 existed, IRS could select beginning with the least senior qualified
 employee to fill the remaining vacancies or fill the positions using
 competitive procedures.
 
    The parties again telephonically discussed the Union's proposals for
 staffing the CTS and WPT groups on September 25, 1980.  Ferris
 represented the Union and Ahern and Susan Barlient, Respondent's Chief
 of Collective Bargaining Section and Ahern's supervisor, represented
 IRS.  /2/ During the conversation Barlient informed Ferris that IRS
 wished to move ahead "very soon" on the CTS and WPT programs and wanted
 to make sure the parties were down to final positions.  Barlient asked
 Ferris to explain his proposals and Ferris indicated that he construed
 his proposals as offering IRS a choice of procedures in selecting
 employees for the CTS and WPT groups in line with the Authority's
 decision in Wright-Patterson.  Barlient remarked that she felt that the
 Union's proposal mandated seniority and Ferris outlined his proposal as
 he did to Ahern on September 17, supra.  After further questioning by
 Barlient, Ferris offered to make explicit that which he felt was
 implicit in the proposal by specifically adding a sentence to the
 proposal which would state that the choice between using seniority or
 competition was the employers.  Barlient eventually acknowledged that
 she now realized the Union was not attempting to mandate seniority in
 staffing the vacancies and told Ferris she would look into the entire
 matter and talk with him on the following day.
 
    The parties conversed again by telephone on September 26.  Barlient
 informed Ferris that IRS had to make a decision on that day as to the
 procedure to use in filling the vacancies.  She asked Ferris to explain
 again the Union's proposal.  Ferris went over the proposal much the same
 as he did the previous day and Barlient responded that she felt the
 proposal still mandated seniority which was unacceptable to IRS, and
 accordingly the agency was going to declare the Union's proposal to be
 nonnegotiable that day.  Barlient further stated that a letter to that
 effect would be delivered to the Union's Washington office immediately.
 /3/ Ferris protested Barlient's reversing her position of the previous
 day on the negotiability of the proposal and asked her how she could
 call the Union's proposal nonnegotiable in light of the Wright-Patterson
 decision.  Barlient responded that as far as she was concerned
 Wright-Patterson needed to be relitigated.  Ferris informed Barlient
 that he wanted his proposal to be "on the record" with IRS and even
 though IRS was taking the position that the Union's proposal was
 nonnegotiable he would hand deliver the proposal to her upon his return
 to Washington on the following week.
 
    On September 27, 1980 the Union received Respondent's written
 position on the Union's proposals declaring the proposals nonnegotiable
 in that they interfere with management's right to assign employees under
 section 7106(a)(2)(A) of the Statute and to assign work under section
 7106(a)(2)(B) of the Statute.  IRS further informed the Union that
 procedures for selection of employees for the two programs would be
 implemented on September 29.
 
    Ferris submitted on September 30, 1980 the proposals he had discussed
 with IRS on September 26 and 27.  The proposals provided, in relevant
 part:
 
          "Vacancies in these groups will be filled as follows:
 
          "a.  The employer will solicit volunteer applications from
       qualified revenue agents in all IRS offices.  Solicitation will be
       done by a vacancy announcement which details the specific
       differences between this type of examination and normal
       examination work, e.g. little or no corporate tax return work.
 
          Unless the employer fills the vacancies with the most senior
       applicants (IRS seniority) or choose all who volunteer, it will
       then use competitive contract procedures to select for the
       vacancies.  (Failure to fill the vacancies at this point will
       permit the employer to then use alternate selection procedures.)
 
          "b.  Where not enough employees volunteer to fill the
       vacancies, the employer, if it wishes to fill the remaining
       vacancies, will reassign the least senior qualified employee in
       the same appointing office as the vacancy to the position, or the
       employer will automatically consider all qualified employees in
       the same appointing office as the vacancy through the competitive
       procedures of the contract (no applications are required).  The
       choice to use one or the other is the employers.
 
          "c.  The involuntary reassignment from one appointing office to
       another will be used to fill these vacancies only as a last
       resort, i.e. after all other procedures have been used . . . "
 
    Selection of employees for work in the programs was in progress by
 early to mid-October 1980.
 
    On October 14, 1980 Ahern and Ferris discussed the staffing of the
 CTS and WPT vacancies and Ahern proposed that in selecting volunteers
 for these programs IRS would consider the seniority of volunteers.
 Ferris rejected this proposal and Ahern notified Ferris that his
 proposals of September 30 were unacceptable to the IRS.  By letter to
 Ferris dated November 26, 1980 IRS confirmed its position on the matter
 per the October 14 discussion and indicated it was nevertheless willing
 to meet and continue to discuss the subject.
 
    In early November 1980 the Union filed two unfair labor practice
 charges alleging Respondent refused to bargain concerning the programs.
 Nevertheless, at Ahern's request the parties met again to discuss
 proposals on the programs on December 19, 1980.  During this meeting
 Ahern acknowledged that IRS felt the Union's proposals of August 29 were
 nonnegotiable, but it was Respondent's position that the Union's
 proposals of September 30 which contained different wording, while
 "unacceptable", were not being declared "nonnegotiable." Ahern pointed
 to the language of Respondent's October 14 letter to the Union, supra,
 which referred to the Union's proposal as "unacceptable" and indicated
 IRS was still willing to negotiate on the matter.  /4/ Ferris again
 explained that the Union's proposals for staffing would operate the same
 as that set out in Wright-Patterson, that is, management had the option
 of staffing the vacancies using seniority or competitive procedures.
 IRS presented the Union with its proposals which were similar to its
 earlier proposals except the latest proposal specifically stated that
 management would "give consideration to the most senior employees . . .
 from among those volunteers determined to be qualified by management."
 Ferris again rejected Respondent's proposal and Respondent again
 rejected the Union's proposal and it became apparent to the parties that
 resolution would require mediation.
 
    On December 22, 1980 the Union withdrew the unfair labor practice
 charges it filed in early November since Ferris now felt the parties
 were bargaining on the matter.  Immediately after withdrawing the unfair
 labor practice charges Ferris invoked the services of the Federal
 Mediation and Conciliation Service (FMCS).
 
    The parties met before the FMSC on February 2, 1981.  Although
 negotiations continued, the parties were unable to reach agreement and
 on February 5 Ferris requested the assistance of the Federal Service
 Impasses Panel (FSIP or the Panel).
 
    On March 25 and 26, 1981 the parties met in a prehearing conference
 with a factfinder from the FSIP.  During the conference the parties were
 engaged in a dialogue clarifying their positions when it first became
 apparent to IRS that the Union's proposals not only covered filling
 unfilled vacancies but were to have retroactive effect regarding the
 already filled positions and a prospective effect as to any vacancies in
 the program which might occur in the future.  /5/ Indeed, the Union
 amended its proposals at the prehearing conference to expressly state
 that their proposals would be applied retroactively as well as
 prospectively in filling all vacancies in the programs.  /6/ The parties
 resolved some of their differences regarding the programs including
 adopting the language of Respondent's proposals of September 15, 1980,
 supra, relative to matters encompassed by any agreement concerning the
 CTS and WPT programs would be subject to the "current grievance
 procedures . . . (but) . . . upon implementation of a new consolidated
 contract the scope of the grievance procedure contained therein will be
 precedent over the above." /7/ However, the parties continued to reject
 each others proposals on basic staffing procedures and Respondent
 concluded that because the Union's prospective and retroactive
 application concept expanded the impact of any staffing agreement, it
 would rely on the staffing provisions of the newly negotiated NORD
 contract which it felt was applicable to CTS and WPT staffing and
 negated its obligation to bargain further on the matter.  In any event,
 an FSIP factfinding hearing was scheduled for April 7.
 
    In a letter to the FSIP dated April 3, 1981, a copy of which was
 received by the Union, Respondent set forth its position that the
 Union's amended proposals of September 30, 1980, supra, were not
 negotiable.  Respondent stated that the Union's proposals conflicted
 with the terms of MDA III and the NORD agreements and averred that in
 implementing the CTS and WPT programs, "the newly created positions were
 filled in accordance with prescribed management rights and the
 negotiated procedures of the master agreements (MDA III, NORD)."
 Respondent concluded that since a negotiability question existed the
 parties were not at a negotiation impasse and the issue therefore was
 not properly within the jurisdiction of the FSIP.  Accordingly,
 Respondent advised it would not appear at the April 7 factfinding
 hearing.
 
    On April 6, 1981 Respondent filed with the FSIP a Motion to
 Continue/Adjourn Factfinding Hearing.  In its motion Respondent
 explained that it had no further obligation to negotiate with the Union
 on the matters at issue since they were already covered under a recently
 negotiated master agreement with the union and a negotiation impasse
 under the Statute did not exist.  The motion was denied by the Panel.
 
    Respondent made an appearance at the April 7, 1981 factfinding
 hearing for the purpose of contesting the FSIP's jurisdiction over the
 matter beyond which it declined to appear or participate in the hearing.
  The Factfinder proceeded with an ex parte hearing after which he
 declined to resolve the impasse and recommended that the negotiability
 issue presented by Respondent be resolved" in an appropriate forum." On
 August 10, 1981 the FSIP adopted the Factfinder's recommendation.
 
    Issues
 
    The General Counsel contends that Respondent refused to bargain in
 good faith in violation of section 7116(a)(1) and (5) of the Statute
 when it asserted on April 3, 1981 that no bargaining obligation existed
 relative to procedures for staffing the CTS and WPT programs.
 
    The Union takes the position that not only did Respondent violate the
 Statute as alleged by the General Counsel, but IRS also engaged in
 violations when in September 1980 it declared the Union's original
 proposal's nonnegotiable and proceeded to begin unilaterally staffing
 the CTS and WPT programs in October 1980.  However, such latter
 contentions were neither alleged in the Complaint nor urged by Counsel
 for the General Counsel at the hearing.  Therefore, I do not consider
 such allegations to be properly before me and accordingly make no
 findings or conclusions with regard thereto.
 
    Respondent contends it bargained in good faith and that in March 1981
 and thereafter it had no obligation to bargain with the Union on its CTS
 and WPT proposals in that procedures for filling vacancies in such
 situations were fully set forth in the NORD agreement of January 1981.
 Respondent reasons that any obligation to bargain was extinguished after
 the Union entered into that agreement, much the same as a waiver of a
 bargaining right might occur.  While acknowledging it did not raise this
 defense to negotiations between execution of the NORD agreement and its
 first meeting with the FSIP, essentially Respondent explains that the
 Union's adding retroactive and prospective application of its proposals
 before the Factfinder expanded the impact of the proposals to such a
 significant degree that Respondent was no longer willing to forego its
 rights under the NORD agreement.  Further, Respondent now contends,
 raising this defense for the first time shortly before this hearing
 commenced, that the Union's proposals directly interfere with
 management's rights under section 7106 of the Statute to assign
 employees to positions and assign work, and therefore are not
 negotiable.  /8/
 
                                Discussion
 
    I find and conclude that Respondent refused to negotiate in good
 faith in violation of section 7116(a)(1) and (5) of the Statute when, on
 April 3, 1981, it clearly conveyed to the Union that it had no
 obligation to bargain on the Union's staffing proposals relative to the
 CTS and WPT programs and thereafter failed to negotiate or allow FSIP
 resolution.
 
    The threshold question is whether the Union's proposals were
 negotiable under section 7106 of the Statute since if the proposals were
 not negotiable IRS would be privileged to refuse to bargain with the
 Union on April 3 even after having negotiated with the Union prior
 thereto.  /9/ As found above, after IRS declared the Union's first set
 of proposals to be nonnegotiable under section 7106 of the Statute, the
 Union revised its proposals to conform to the proposal dealing with
 selection procedures in Wright-Patterson which the Authority found to be
 negotiable.  That case held, inter alia, that a proposal which provided
 the agency with discretion is filling certain vacancies either by
 competitive procedures outlined in the parties agreement or by seniority
 did not directly interfere with the agency's basic right to assign
 employees under section 7106(a)(2)(A) of the Statute and was therefore
 negotiable.  /10/ Although IRS representatives at first had some
 difficulty in perceiving any discretion in the Union's revised
 proposals, Ferris fully explained how he interpreted the proposals and
 intended the choice to operate.
 
    Ferris' wording in the proposals did not exactly tract that found in
 Wright-Patterson and could be interpreted in a variety of ways including
 compelling seniority selection before going to competitive procedures.
 However, Ferris' repeated explanation committed the Union to an
 interpretation which gave Respondent a choice of selection either by
 seniority or competitive procedures in the first instance and, by
 December 19, 1980 Respondent's representatives' apprehensions were
 dispelled.  Ferris testified that the language in section 1B of his
 proposals that "The choice to use one or the other is the employers,"
 supra, also applied to section 1A and such was clearly conveyed to
 Respondent.  /11/ Regardless of the wording, the intent of the proposals
 was that the choice applicable in Wright-Patterson was applicable to the
 Union's proposals and at all times material Respondent was aware it had
 that choice.  Indeed, Respondent did not raise its negotiability
 argument until shortly before the hearing in this case.
 
    In its brief Respondent acknowledges that the Authority would require
 an agency to negotiate a proposal that would provide management a choice
 between competitive selection procedures or the use of seniority.
 However, Respondent avers that the Union's proposals herein did not meet
 the Wright-Patterson "choice" standard of negotiability because they are
 so time consuming and administratively unfeasible that no actual
 alternative exists other than selection by seniority.  If the Union's
 selection procedures as set forth in Section 1A and 1B of its proposals
 were followed, the combination of procedures would take several months
 to complete, which, Respondent asserts, would exceed twice the time IRS
 took to complete the process.  Respondent's contention is premised on an
 explanation of the Union's proposal given by Ferris before the FSIP
 Factfinder on April 7, 1981, supra.  Ferris stated that the Union's
 proposals would require all volunteers be first ranked by seniority and
 management would then have to consider selecting employees for vacancies
 on that basis.  However, if management wished to pass over any employee
 or deviate from that list it could proceed to select on the basis of
 competitive procedures.  If vacancies still existed, the employer could
 then involuntarily reassign the least senior employees at the location
 where the vacancies existed or involuntarily reassign employees to the
 vacancies based upon competitive procedures.  /12/ Thus, in following
 the Union's proposals, substantial time would be required to compile the
 seniority list, consider placement from that list and then engage in
 competitive procedures perhaps twice.
 
    In sum, Respondent contends that to staff the program following the
 Union's proposals, other than by seniority, would result in inordinate
 administrative burdens resulting in a substantial delay in
 implementation which would materially diminish the effectiveness of the
 programs.  Thus, Respondent avers the Union's proposals, in reality,
 left no viable choice for staffing other than filling the vacancies by
 seniority.  Additionally, Respondent's desire to avoid such delay was
 based upon its attempt to comply with "congressional interest" in the
 timely implementation of the programs and to avoid enforcement problems
 occasioned by the running of the governing statutes of limitations.
 /13/
 
    In the circumstances herein, I find the Union's CTS and WPT proposals
 provided Respondent with a choice of selection procedures within the
 meaning of the Authority's decision in Wright-Patterson and accordingly,
 are negotiable under section 7106 of the Statute.
 
    The cumulative staffing procedures espoused by the Union would
 doubtlessly require substantially more time to fill the positions than
 management's proposal.  Indeed, adopting the Union's proposals to fill
 the positions might be so time consuming, onerous or otherwise
 administratively undesirable that if the matter were placed before the
 FSIP, the Panel would reject the Union's proposals.  /14/ But, if it
 preferred, Respondent could choose to select employees for the vacancies
 without utilizing the entire procedure set out in the Union's proposals.
  Moreover, a substantial delay in implementing a program will not
 necessarily result in the Authority declaring a proposal nonnegotiable.
 /15/ It is well settled that the statutory standard in deciding the
 negotiability of a proposal is not whether the union's proposal would
 result in an undesirable or unreasonable delay so as to negate the
 exercise of a management right.  Rather, the standard is whether
 adoption of the proposal will "prevent the agency from acting at all."
 /16/
 
    I find that the Union's proposals presented IRS with a choice of
 procedures allowing IRS to staff the programs from alternative sources.
 /17/ Accordingly, in these circumstances I conclude that the Union's
 proposals were negotiable under section 7106 of the statute and I reject
 Respondent's arguments with regard thereto.  /18/
 
    Respondent's contention that its conduct did not show other than
 "good faith" bargaining as defined in section 7114(b) of the Statute is
 without merit.  One of the requirements of section 7114(b)(2) is " . . .
 to discuss and negotiate on any condition of employment." By its conduct
 in refusing to bargain with the Union after the matter proceeded to the
 FSIP, I conclude Respondent failed to comply with its obligation to
 discuss and negotiate on a matter herein found to be a negotiable
 condition of employment.  Further, specific evidence of an intent by
 Respondent to evade or frustrate its bargaining obligation is not
 required since intent is not an element of a section 7116(a)(5)
 violation in situations such as that presented herein.  /19/
 
    I further reject Respondent's contention that the terms of the NORD
 agreement govern the matter at issue herein and by executing the NORD
 agreement the Union waived its right to continue negotiations on the
 procedures for staffing the CTS and WPT programs.
 
    At the hearing Respondent offered testimony that provisions contained
 in the NORD agreement would apply to the procedures used in selecting
 employees when staffing programs such as the CTS and WPT programs.
 However, under MDA III, the predecessor agreement between the parties,
 the parties had a practice of periodically negotiating over
 reassignments or similar personnel actions to accommodate employees who
 were being affected by a reorganization.  Respondent contends that its
 change of position regarding negotiating with the Union was based upon a
 consolidation of bargaining units preceding the NORD agreement.  /20/
 According to Respondent, under MDA III each district office constituted
 a separate bargaining unit but under NORD only one overall unit was
 recognized.  Accordingly, Respondent contends that after the NORD
 agreement came into effect its terms controlled the staffing of the CTS
 and WPT positions and management's actions in staffing those positions
 complied with the terms of that agreement.  Thus, Respondent's argument
 in effect suggests that by the execution of the NORD agreement the Union
 waived its right to pursue negotiations on staffing the CTS and WPT
 positions, an accepted practice under MDA III.
 
    It has been long and continuously held that a waiver can be
 established only by clear and unmistakable conduct.  /21/ In the case
 herein no such "clear and unmistakable" conduct has been shown to occur.
  Thus, the negotiations on staffing began in September 1980 and the
 parties recognized during the December 22, 1980 discussion, that
 intervention by the Federal Mediation and Conciliation Service would be
 required.  The services of the FMCS were invoked immediately after the
 December 22 discussion and the parties proceeded to mediation on
 February 2, 1981 and then to impasse proceedings on March 26.  At no
 time to this point did either the Union or Respondent by its conduct
 indicate other than a desire to resolve their dispute following the
 practice established under MDA III, i.e. negotiation.  Neither the
 language of the NORD agreement executed January 26, 1981, nor testimony
 relating to discussions giving rise to the NORD agreement nor at any
 other time, indicate that the dispute concerning the CTS and WPT
 programs was to be governed by NORD.
 
    Further, Respondent's proposals submitted on September 17, 1980 and
 unmodified thereafter, except to the extent that IRS committed itself to
 "give consideration" to seniority of those volunteering for the
 programs, contained language that provisions of the proposals would be
 governed by the then current grievance procedures noting that " . . .
 upon implementation of a new consolidated contract the scope of the
 grievance procedure contained therein will be precedent over the above
 (proposals)." Thus, even though a consolidated collective bargaining
 agreement was envisioned and IRS made explicit provision that the terms
 of the grievance procedure therein would apply, IRS did not make similar
 provision with regard to the precedence of the staffing provisions of
 the new agreement over those contained in MDA III.
 
    Accordingly, I conclude in all the circumstances that the execution
 of the NORD agreement did not constitute a waiver of the Union's right
 to negotiate to finality under MDA III the staffing procedures to be
 used vis a vis the CTS and WPT programs.
 
                                  Remedy
 
    The Union requests that all prior personnel actions taken with regard
 to staffing the CTS and WPT programs be declared a nullity and that any
 staffing proceed in accordance with whatever agreement is reached during
 future bargaining between the parties.  /22/ Thus, the Union suggests
 that after the parties negotiate on the matter to finality, i.e.
 agreement or imposition of a resolution by the FSIP, the terms of the
 final outcome be applied retroactively.
 
    In my opinion an order directing retroactive application as the Union
 seeks would be inappropriate.  The Union's proposals sought specific
 retroactive application of the CTS and WPT programs.  By ordering
 retroactivity as part of the remedy I would essentially be imposing a
 term of a proposal on IRS, a matter I am not disposed to do on the facts
 herein.
 
    Moreover, in this particular case it is entirely possible that the
 parties will eventually find themselves before the FSIP for resolution
 of a bargaining impasse.  In that event the FSIP would appropriately
 consider such a proposal and an order herein requiring retroactive
 application would limit the requisite flexibility and impair the broad
 range of options the FSIP necessarily requires to execute its statutory
 functions.  Accordingly, the Union's request for retroactive application
 is denied.
 
    The Union also contends it is entitled to an award of costs and
 attorney's fees incurred in connection with the litigation of this case.
  The Union asserts authority for an award exists under section 7105,
 (Powers and Duties of the Authority), and section 7118, (Prevention of
 Unfair Labor Practices), of the Statute, and under the Equal Access to
 Justice Act, (EAJA) 5 U.S.C. 504.
 
    Without passing upon whether an award of costs and attorney's fees is
 permissable under the Statute, /23/ I conclude such an extraordinary
 remedy is not required in the circumstances of this case, noting
 particularly the ambiguities contained in the Union's written proposals
 of September 30, 1980, and the Union's conduct in subsequently modifying
 its proposals before the FSIP.
 
    With regard to the Union's request for an award under the EAJA, that
 statute and the Authority's implementing regulations /24/ indicate that
 the award provisions under the EAJA are available only to a respondent,
 other than the United States, who prevails against the General Counsel
 in an unfair labor practice proceeding.  Therefore, the Union, as a
 charging party is not entitled to an award under the EAJA and its
 request is denied.
 
    Accordingly, in view of the entire foregoing and having concluded
 that Respondent has violated section 7116(a)(1) and (5) of the Statute,
 I recommend the Authority issue the following:
 
                                   Order
 
    Pursuant to section 2423.20 of the Federal Labor Relations
 Authority's regulations and section 7118 of the Statute, it is hereby
 ordered that the Internal Revenue Service shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to negotiate in good faith with
       National Treasury Employees Union, the employees' exclusive
       collective bargaining representative, by declaring nonnegotiable
       the proposals made by National Treasury Employees Union on March
       26, 1981, as explained to the Federal Service Impasses Panel on
       April 7, 1981 by Frank Ferris, National Treasury Employees Union's
       Director of Negotiations, concerning staffing the Commodity Tax
       Shelter and Windfall Profits Tax programs.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of 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 Federal Service Labor-Management Relations
 Statute:
 
          (a) Upon request of National Treasury Employees Union, the
       employees' exclusive collective bargaining representative,
       negotiate, to the extent consonant with law and regulations,
       concerning staffing of the Commodity Tax Shelter and Windfall
       Profit Tax programs.
 
          (b) Post at its National Office, Regional Offices and District
       Offices copies of the attached Notice marked "Appendix", on forms
       to be furnished by the Federal Labor Relations Authority.  Upon
       receipt of such forms they shall be signed by the Commissioner,
       Internal Revenue Service, and shall be posted and maintained by
       him for 60 consecutive days thereafter, in conspicuous places,
       including bulletin boards and all other places where notices to
       employees are customarily posted.  The Commissioner shall take
       reasonable steps to insure that such notices are not altered,
       defaced, or covered by any other material.
 
          (c) Pursuant to section 2423.30 of the Federal Labor Relations
       Authority's Rules and Regulations, notify the Regional Director of
       Region 3, Federal Labor Relations Authority, 1111 18th Street,
       NW., Suite 700, Washington, D.C. 20036, in writing within 30 days
       from the date of the Order as to what steps have been taken to
       comply herewith.
                                      /s/ Salvatore J. Arrigo
                                       SALVATORE J. ARRIGO
                                       Administrative Law Judge
 
    Dated:  March 5, 1982
    Washington, D.C.
 
 
 
 
                                 APPENDIX
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail and refuse to negotiate in good faith with National
 Treasury Employees Union, the employees' exclusive bargaining
 representative, by declaring nonnegotiable the proposals made by
 National Treasury Employees Union on March 26, 1981, as explained to the
 Federal Service Impasses Panel on April 7, 1981 by Frank Ferris,
 National Treasury Employees Union Director of Negotiations, concerning
 staffing the Commodity Tax Shelter and Windfall Profit Tax programs.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce any employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request of the National Treasury Employees Union,
 negotiate to the extent consonant with law and regulations, concerning
 staffing of the Commodity Tax Shelter and Windfall Profit Tax programs.
                                       (Agency of Activity)
 
    Dated:  By:
                                       (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director, Federal Labor Relations Authority, Region 3, 1111
 18th Street, NW., Suite 700, Washington, D.C. 20036 and whose telephone
 number is (202) 653-8452.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Wright-Patterson proposal referred to was Union Proposal III
 which stated:
 
          " . . . Unless the employer decides to use competitive
       procedures as outlined in Article . . . (Promotions), temporary
       assignment to higher or same grade/different duty positions shall
       be offered to qualified and available employees with requisite
       skills on the basis of seniority within the lowest organizational
       segment.  If senior employees decline and it is necessary to
       detail an employee, the least senior employee shall be assigned."
 
 
    /2/ The version of what occurred during this conversation and that of
 September 26 is taken primarily from the testimony of Ferris.  While
 Ahern's version was substantially in accord with Ferris' in material
 matters, Ferris' presentation was more direct and thorough.  Further,
 although Barlient testified in this proceeding, no testimony was
 elicited from her relative to these conversations.
 
 
    /3/ During the above telephone conversations Ferris was away from the
 Union's Washington, D.C. office at a training conference in Minnesota.
 
 
    /4/ Indeed, at all times thereafter Ahern considered the Union's
 modified proposals to be negotiable.
 
 
    /5/ By the time of the prehearing conference there were approximately
 117 employees assigned to the CTS program and 335 employees asked to the
 WPT program.  Around 25 vacancies still remained to be filled on March
 26.  Positions were filled in both programs through vacancy
 announcements and competition, soliciting volunteers, and involuntary
 reassignments.
 
 
    /6/ Ferris acknowledged that at the prehearing conference he changed
 his proposals to include retroactivity but assumed that the prospective
 application of the original proposals was obvious.
 
 
    /7/ In fact, a "new consolidated contract" was arrived at between the
 parties, said agreement taking effect on January 26, 1981.  The contract
 covered Respondent's National Office, Regions and Districts (referred to
 herein as the NORD agreement) and replaced the Multi-District Agreement
 (referred to herein as MDA III).
 
 
    /8/ Section 7106 provides, in relevant part:
 
          "(a) . . . nothing in this chapter shall affect the authority
       of any management official of any agency . . . to . . . assign . .
       . employees in the agency . . . (or) . . . to assign work . . . "
 
 
    /9/ See remarks of Rep. Ford at 124 Cong.Rec. H9646 (daily ed. Sept.
 13, 1978) relative to management's bargaining obligations under the
 final version of section 7106(b)(1) which deals with matters negotiable
 at the election of an agency, wherein Rep. Ford stated:
 
          "I might say that not only are (agencies) under no obligation
       to bargain, but in fact they can start bargaining and change their
       minds and decide they do not want to talk about it any more, and
       pull it off the table.  It is completely within the control of the
       agency to begin discussing the matter or terminate the discussion
       at any point they wish without a conclusion, and there is no
       appeal or reaction possible from the parties on the other side of
       the table."
 
 
    /10/ Wright-Patterson, supra, at 612-614.
 
 
    /11/ At no time did Respondent suggest that Ferris' proposals were
 ambiguous and should be reworded.
 
 
    /12/ Competitive procedures involve ranking employees from the most
 qualified to the least qualified based upon the performance evaluations
 of all employees in the appointing office.  If an employee did not have
 a current evaluation on file at the time, one would have to be prepared
 by management.
 
 
    /13/ The WPT program had a three year statute of limitations on
 assessment.
 
 
    /14/ See e.g. Department of the Treasury, U.S. Customs Service,
 Washington, D.C. and National Treasury Employees Union, 81 FSIP 126,
 Panel Release No. 197 (1981), timing of performance appraisals;
 Department of Commerce, Maritime Administration, U.S. Merchant Marine
 Academy, Kings Point, New York and Local 3732, American Federation of
 Government Employees, AFL-CIO, 81 FSIP 77, Panel Release No. 197 (1981),
 time allocated for negotiations;  and Veterans Administration Regional
 Office, Houston, Texas and Local 1454, National Federation of Federal
 Employees, 81 FSIP 12, Panel Release No. 178 (1981), site of
 negotiations.
 
 
    /15/ National Treasury Employees Union and U.S. Customs Service,
 Region VIII, San Francisco, California, 2 FLRA 255 (1979).
 
 
    /16/ American Federation of Government Employees, AFL-CIO, Local 1999
 and Army-Air Force Exchange Service, Dix - McGuire Exchange, Fort Dix,
 New Jersey, 2 FLRA 153 (1979);  National Treasury Employees Union and
 U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA 255
 (1979);  and Wright-Patterson, supra, at 623-626.
 
 
    /17/ Cf. National Treasury Employees Union and Department of the
 Treasury, Internal Revenue Service, 6 FLRA No. 97 (1981);  American
 Federation of Government Employees, AFL-CIO, Local 909 and Department of
 the Army, Headquarters, Military Traffic Management Command, Washington,
 D.C., 6 FLRA No. 96 (1981);  and American Federation of Government
 Employees, AFL-CIO, Local 2792 and Department of Commerce, Bureau of the
 Census, Washington, D.C., 6 FLRA No. 56 (1981).
 
 
    /18/ Cf. Department of the Air Force, U.S. Air Force Academy, 6 FLRA
 No. 100 (1981).
 
 
    /19/ Cf. Department of the Treasury, Internal Revenue Service and IRS
 Richmond District Office, 3 FLRA 18 (1980) and see also Division of
 Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA
 158 at 172-173 (1982).
 
 
    /20/ Internal Revenue Service, Washington, D.C. and National Treasury
 Employees Union, 7 A/SLMR 497 (1977).
 
 
    /21/ Department of the Air Force, U.S. Air Force Academy, 6 FLRA No.
 100 (1981);  Department of the Air Force, Scott Air Force Base,
 Illinois, 5 FLRA No. 2 (1981);  Department of the Treasury, Internal
 Revenue Service, Cleveland, Ohio, 3 FLRA 656 (1980), absence of
 reference in agreement does not support a waiver;  Department of the
 Treasury, Bureau of Alcohol, Tobacco and Firearms, 6 FLRC 784 (1978), 8
 A/SLMR 551, neither express terms of agreement nor discussions during
 negotiations established a waiver;  U.S. Department of the Treasury
 Internal Revenue Service, New Orleans District, 6 A/SLMR 497 (1978)
 absent an express contractual provision, at least some discussion
 necessary to establish a waiver of a past practice;  and NASA, Kennedy
 Space Center, Florida, 2 A/SLMR 566 (1972).
 
 
    /22/ Counsel for the General Counsel does not join in this request.
 
 
    /23/ Case law developed under the National Labor Relations Act, 29
 U.S.C. 157, strongly suggests that awarding costs and attorney's fees is
 within the Authority's broad statutory remedial powers.  National Labor
 Relations Board v. Food Store Employees Union, Local 347, etc. 417 U.S.
 1, 94 S.Ct