17:0731(103)CA - IRS and NTEU -- 1985 FLRAdec CA



[ v17 p731 ]
17:0731(103)CA
The decision of the Authority follows:


 17 FLRA No. 103
 
 INTERNAL REVENUE SERVICE 
 Respondent
 
 and 
 
 NATIONAL TREASURY EMPLOYEES UNION 
 Charging Party
 
                                            Case No. 3-CA-20156
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 the unfair labor practice alleged in the complaint and recommending that
 it be ordered to cease and desist therefrom and to take certain
 affirmative action.  Thereafter, the Respondent filed exceptions to the
 Judge's Decision and a supporting brief, and the Charging Party filed an
 opposition to the Respondent's exceptions.  Each of the following
 organizations filed an amicus curiae brief:  The Office of Personnel
 Management (OPM);  the Department of Agriculture (DA);  the Department
 of Health and Human Services (HHS);  the Department of the Interior
 (DOI);  and the Department of Energy (DOE).  /1/
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record in this case, the Authority
 hereby adopts the Judge's findings, conclusions and recommended Order,
 as modified herein.
 
    The complaint alleges that the Respondent violated section 7116(a)(1)
 and (5) of the Statute by refusing to negotiate concerning proposals
 submitted by the Charging Party during the term of existing collective
 bargaining agreements which were not related to any changes initiated by
 the Respondent.  The Judge found that the Respondent violated the
 Statute as alleged in the complaint, concluding that the duty to bargain
 in good faith imposed upon agencies by the Statute includes the
 requirement to bargain over proposals initiated by a union during the
 term of an existing collective bargaining agreement concerning subjects
 not specifically waived by the union during negotiations or included in
 the existing agreement.  The Judge supported this latter conclusion by
 relying upon precedent under the National Labor Relations Act, most
 especially the case of Jacobs Manufacturing Company, 94 NLRB 1214
 (1951), enf'd, 196 F.2d 680 (2d Cir. 1952). The Authority does not
 agree.
 
    The issue here presented is whether there exists an obligation under
 the Statute to bargain over proposals initiated by a union during the
 term of an agreement which are unrelated to management-initiated changes
 in conditions of employment.  The findings and purpose of the Statute
 are set forth in section 7101.  /2/ In that section, Congress stated
 that the statutory protection of the right of employees to bargain
 collectively safeguards the public interest, contributes to the
 effective conduct of public business, and facilitates and encourages the
 amicable settlements of disputes between employees and their employers
 involving conditions of employment.  Congress therefore concluded that
 collective bargaining in the civil service is in the public interest.
 /3/ At the same time, Congress also noted in that section that the
 provisions of the Statute should be interpreted in a manner which is
 consistent with the requirement of an effective and efficient Federal
 Government.  In order to understand the extent of the right to bargain
 collectively in the context of the requirement of an effective and
 efficient Government, it will be necessary to address the meaning of
 collective bargaining and the rights and obligations associated
 therewith.
 
    Collective bargaining is defined in section 7103(a)(12) of the
 Statute as follows:
 
          Sec. 7103.  Definitions;  application
 
          (a) For the purpose of this chapter--
 
                                .  .  .  .
 
          (12) "collective bargaining" means the performance of the
       mutual obligation of the representative of an agency and the
       exclusive representative of employees in an appropriate unit in
       the agency to meet at reasonable times and to consult and bargain
       in a good-faith effort to reach agreement with respect to the
       conditions of employment affecting such employees and to execute,
       if requested by either party, a written document incorporating any
       collective bargaining agreement reached, but the obligation
       referred to in this paragraph does not compel either party to
       agree to a proposal or to make a concession(.)
 
 The rights and obligations of parties to engage in collective bargaining
 under the Statute are set forth in section 7114.  Of significance here
 are the following provisions of this section:
 
    Sec. 7114.  Representation rights and duties
 
          (a)(1) A labor organization which has been accorded exclusive
       recognition is the exclusive representative of the employees in
       the unit it represents and is entitled to act for, and negotiate
       collective bargaining agreements. . . .
 
                                .  .  .  .
 
          (4) Any agency and any exclusive representative in any
       appropriate unit in the agency, through appropriate
       representatives, shall meet and negotiate in good faith for the
       purposes of arriving at a collective bargaining agreement. . . .
 
                                .  .  .  .
 
          (b) The duty of an agency and an exclusive representative to
       negotiate in good faith under subsection (a) of this section shall
       include the obligation--
 
          (1) to approach the negotiations with a sincere resolve to
       reach a collective bargaining agreement;
 
                                .  .  .  .
 
          (5) if agreement is reached, to execute on the request of any
       party to the negotiation a written document embodying the agreed
       terms, and to take such steps as are necessary to implement such
       agreement.
 
    It is apparent from the specific language of these provisions of the
 Statute that a labor organization which is an exclusive representative
 of employees in an appropriate unit and the agency in which the
 employees are employed have a mutual obligation to negotiate in good
 faith in an effort to reach a collective bargaining agreement with
 respect to conditions of employment affecting employees in the unit.
 When these provisions of the Statute are read in conjunction with the
 Statute's findings and purpose as set forth in section 7101, it is clear
 that a goal of collective bargaining is to facilitate and encourage the
 amicable settlement of disputes between employees and their employer
 concerning conditions of employment and that this can best be achieved
 by the negotiation of collective bargaining agreements as appropriate
 under applicable law.  Thus, stability at the work place with respect to
 employees' conditions of employment can be attained by the fulfillment
 of the mutual obligation of the parties to bargain in good faith in an
 effort to reach a collective bargaining agreement.  Moreover, to the
 extent that the parties are required to adhere to the specific
 conditions of employment mutually established in their agreement during
 the life of such agreement, stability at the work place is thereby
 fostered.  /4/ While Congress found collective bargaining in the public
 interest, in so doing, Congress further expressed an intent to limit the
 bargaining obligation over union-initiated proposals to situations where
 parties are negotiating a basic collective bargaining agreement.  In
 this regard, the Senate Committee on Governmental Affairs, in explaining
 section 7215(a)(1) /5/ of the Bill (S. 2640), which is substantially
 identical to the language contained in section 7114(a)(1) of the
 Statute, supra, stated as follows:  /6/
 
          The parties have a mutual duty to bargain not only with respect
       to those changes in established personnel policies proposed by
       management, but also concerning negotiable proposals initiated by
       either the agency or the exclusive representative in the context
       of negotiations leading to a basic collective bargaining
       agreement.
 
 Thus, by this statement, Congress intended that where parties are
 negotiating a basic collective bargaining agreement, the bargaining
 obligation shall exist with respect to negotiable proposals initiated by
 either agency management or the exclusive representative.  However,
 outside this context, Congress intended the bargaining obligation to
 exist only with respect to changes in established conditions of
 employment proposed by management.  /7/ This distinction indicates that
 other than negotiations leading to a basic collective bargaining
 agreement, there is no obligation to bargain over union-initiated
 proposals.
 
    Moreover, as previously noted, various provisions of the Statute
 emphasize the importance of negotiating collective bargaining agreements
 for the purpose of facilitating and encouraging the amicable settlement
 of disputes concerning conditions of employment in an effort generally
 to promote stability at the work place.  Were the Authority to now hold
 that there is a statutory obligation for agency management to bargain at
 any time during the life of a collective bargaining agreement over
 union-initiated proposals which are unrelated to changes initiated by
 agency management, the ability of the parties to rely upon such basic
 agreements as a stable foundation for their day-to-day relations would
 be diminished.  Parties would be discouraged from engaging in the
 effort, as part of negotiation of their basic collective bargaining
 agreement, to foresee potential labor-management relations issues, and
 resolve those issues in as comprehensive a manner as practicable.
 Instead, such a holding would encourage dispersal of the collective
 bargaining process.  It is difficult to envision that Congress, with its
 interest in the achievement of effective and efficient Government
 through collective bargaining and the execution of collective bargaining
 agreements, intended to provide such a disincentive to bargaining for a
 contract and such an incentive to continuous bargaining on an
 issue-by-issue basis.  Such an approach to bargaining would inject
 uncertainty into the parties' relationship, enhance the prospect for
 protracted conflict, and could lead to the continuous expenditure of
 resources for both management and exclusive representatives.
 
    This is not to say, of course, that all bargaining would be precluded
 during the term of an agreement.  Thus, for example, where management
 seeks to alter an established condition of employment in a manner which
 is not precluded by the agreement, it is obligated to notify the
 exclusive representative and afford the latter an opportunity to bargain
 either over the substance of the change to the extent that it may be
 within the scope of bargaining or its impact and implementation.  See,
 e.g., Social Security Administration, Mid-America Service Center, Kansas
 City, Missouri, 9 FLRA 229 (1982) and Department of the Air Force, Scott
 Air Force Base, Illinois, 5 FLRA 9 (1981).  Additionally, where parties
 have negotiated a reopener provision in their agreement, timely
 negotiable proposals submitted in connection and consistent therewith
 are subject to the mutual obligation to bargain.  See generally,
 Department of the Treasury, Internal Revenue Service and National
 Treasury Employees Union, 7 FLRA 610 (1982) and American Federation of
 Government Employees, AFL-CIO, Local 2494 and Strategic Weapons Facility
 Pacific, Bremerton, Washington, 7 FLRA 590 n.2 (1982).  And, of course,
 management retains the authority to exercise its rights under section
 7106(a) of the Statute subject to bargaining with the exclusive
 representative under section 7106(b)(2) and (3).  See Social Security
 Administration, 8 FLRA 517 (1982).
 
    Turning to the instant case, the record indicates that the parties
 entered into collective bargaining agreements covering the two units
 involved herein on January 26, 1981.  On July 29, 1981, six months
 later, the Charging Party submitted its bargaining proposals and
 demanded negotiations.  Based on the above, the Authority concludes that
 there was no obligation to bargain over these union-initiated proposals
 and that the Respondent's failure to do so does not constitute a
 violation of section 7116(a)(1) and (5) of the Statute, as alleged.
 Accordingly, the Authority shall order that the complaint be dismissed
 in its entirety.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CA-20156 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., April 24, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 3-CA-20156
    Richard J. Mihelcic, Esquire
    Edward Lee Patton, Esquire
    For the Respondent
 
    Patricia Eanet Dratch, Esquire
    For the General Counsel
 
    Mr. Thomas Spangler
    Joseph V. Kaplan, Esquire
    For the Charging Party
 
    Before:  BURTON S. STERNBURG, 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.Section 7101, et seq., and the Rules and Regulations issued
 thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980 and Vol. 46,
 No. 154, August 11, 1981, 5 C.F.R.Chapter XIV, Part 2411, et seq.
 
    Pursuant to a charge filed on November 27, 1981, by the National
 Treasury Employees Union (hereinafter called the Union or NTEU), a
 Complaint and Notice of Hearing was issued on February 26, 1982, by the
 Regional Director for Region III, Federal Labor Relations Authority,
 Washington, D.C.  The Complaint alleges that the Internal Revenue
 Service (hereinafter called the Respondent or IRS), violated Sections
 7116(a)(1) and (5) of the Federal Service Labor-Management Relations
 Statute (hereinafter called the Statute or Act), by virtue of its
 actions in refusing to negotiate over mid-term proposals submitted by
 the Union which were not related to any changes in personnel policies or
 practices, or general conditions of employment initiated by Respondent.
 
    A hearing was held in the captioned matter on April 15, 1982, in
 Washington, D.C.  All parties were afforded full opportunity to be
 heard, to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues involved herein.  The parties submitted post
 hearing briefs on May 17, 1982, which have been duly considered.
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions and recommendations.
 
                             Findings of Fact
 
    The Union, the charging party herein, is the exclusive representative
 of various units of employees working for the IRS in its National
 Office, regions, districts, service centers, Detroit Data Center and
 National Computer Center.
 
    The Union and the IRS are parties to two separate collective
 bargaining agreements covering the aforementioned IRS employees who are
 represented by the Union.  The NORD agreement applies to the employees
 working in the National Office, regions and districts.  The Service
 Center Agreement is applicable to the IRS service centers, Detroit Data
 Center and the National Computer Center.  Both agreements were effective
 January 26, 1981.
 
    Article 39, Section C of the NORD Agreement and Article 38, Section C
 of the Service Center Agreement set forth the ground rules for
 mid-contract negotiations of "Employer" sponsored "proposed changes in
 the conditions of bargaining unit employees employment".  Neither
 contract contains any provision for Union sponsored changes in
 conditions of employment, nor do they make any reference, whatsoever, to
 mid-term proposals of the Union with respect to subjects not encompassed
 in such collective bargaining agreements.  In this latter context, Mr.
 Irvin Des Roches, the Chief negotiator for the IRS since 1969, in the
 matter of collective bargaining agreements, testified that the parties
 always had the understanding while they were negotiating the NORD and
 Service Center Agreements and the parties similar predecessor agreements
 that they were negotiating for the life of such agreements "except for
 changes".  In support of his position, Mr. Des Roches relied upon
 Article 39 and Article 38, respectively of the NORD and Service Center
 Agreements.  Mr. Des Roches further acknowledged that he had been
 unsuccessful on behalf of the IRS in obtaining "a written waiver from
 the Union that gave up any and all rights during the life of the
 (collective bargaining) agreement".  In this latter connection, Mr.
 Frank Ferris, Director of Negotiations for NTEU since 1979, who
 admittedly was not at all the negotiating sessions leading up to the
 current NORD and Service Center Agreements, denied that the Union had
 ever waived its right to "enter into bargaining during the term of the
 agreement".
 
    On July 29, 1981, the Union sent a letter to the Respondent wherein
 it requested negotiations on nine proposals dealing with conditions of
 employment.  The nine proposals dealt with Government Cars, Employee
 Investigations, Legislative Salary Check Off, Professional Difference of
 Opinion, Fitness For Duty, Work at Home, Emergency Suspensions,
 Administrative Holidays, and Geographic Selection of Work Site.  /8/
 
    The Union's proposals contained in the July 29, 1981, letter to
 Respondent read in pertinent part as follows:
 
                              GOVERNMENT CARS
 
    The Employer will make available to any union official who is to be
 engaged in the use of official time a government car as long as a
 government car is already in use at the employee's posts-of-duty for
 other official matters.
 
                          EMPLOYEE INVESTIGATIONS
 
    In no case will any employee who is the subject of an investigation
 by management (including Inspection) that could reasonably lead to
 discipline be required to answer any question put to him or her.  No
 adverse consequences of any kind, e.g., supervisory harassment, will
 befall the employee for his/her refusal to answer.
 
                       LEGISLATIVE SALARY CHECK OFF
 
    During the first full pay period in April and October of each year an
 employee may have deducted from his/her salary an amount of money
 designated by the employee.  This money will be sent by IRS to NTEU no
 later than the end of the next full pay period.
 
                             FITNESS FOR DUTY
 
    In no case will an employee be forced to be physically or mentally
 examined in a "fitness for duty" examination by the government chosen
 doctor unless he/she so chooses.
 
    If the employee does not want to use a government designated doctor
 he/she need only submit a list of three doctors from which the employer
 will choose the doctor to do the examination.
 
                               WORK AT HOME
 
    Because of the benefits that can flow from employees working at their
 homes, the employer will immediately begin a one year experiment to test
 the feasibility of the premise.
 
    The test will include Revenue Agents, Revenue Officers, Tax Auditors,
 Revenue Representatives, and others in like positions.
 
    The employees will be permitted to do work at home that would
 otherwise be done in the office, but without public contact.
 
    At the completion of the test either party can reopen negotiations on
 this subject.
 
                    GEOGRAPHIC SELECTION OF WORK SITES
 
    Effective and enlightened personnel management practices call for
 permitting employees to choose when they will do their assigned duties.
 Consequently, the parties agree to give employees more freedom on this
 matter by implementing the following:
 
          When opportunities arise which call for employees to
       temporarily perform their assigned duties outside their normal
       duty station, e.g., at a taxpayer's place of business, these
       temporary assignments will be offered to qualified and available
       employees with requisite skills on the basis of seniority. If
       there are no volunteers these assignments will be rotated among
       qualified and available employees with requisite skills in inverse
       order of seniority.  These procedures are limited to situations
       which would not require a position change of an employee, and they
       do not require an assignment in the absence of work.
 
    By letter dated September 23, 1981, Respondent acknowledged the
 Union's letter and noted that inasmuch as no changes had been effected
 in the areas of the proposals, the Respondent was under no obligation
 "to negotiate over the Union's proposals at this time".  Respondent
 further informed the Union that "the proposals could be the subject of
 discussions when the NORD and Center Agreements may be renegotiated in
 1985, or, of course, if the Service actually does make a change on these
 issues before then".
 
    By letter dated October 8, 1981, the Union acknowledged receipt of
 Respondent's September 23, 1981 letter, and informed the Respondent that
 it, the Union, had a right, independent of changes, to request
 bargaining at any reasonable time as may be necessary.
 
    On November 12, 1981, the Respondent sent a letter to the Union
 wherein it stated in pertinent part as follows:
 
          . . . it is the Services' position that we have no obligation
       to negotiate over mid-term proposals initiated by NTEU that do not
       directly relate to management initiated changes in personnel
       policies or practices, or general conditions of employment.  Since
       the proposals submitted on July 29, 1981, do not relate to any
       management initiated changes, we are under no obligation to
       negotiate over them.
 
    The record further indicates that during the negotiations leading up
 to the current collective bargaining agreements, the Union submitted
 proposals dealing with (1) allowing Field Revenue Officers and Revenue
 Agents to spend one duty hour per day at home to prepare reports and
 make telephone calls, (2) the right of employees to have representatives
 at inspection interviews which the employee reasonably believes may
 result in disciplinary action, /9/ (3) allowing Union Stewards, Chapter
 Presidents or grievants to receive necessary administrative time, travel
 and per diem in connection with grievances, formal discussions, etc.,
 and (4) payment for medical certificates and physicals in connection
 with fitness for duty examinations.
 
    Mr. Irvin Des Roches, the Chief Negotiator for the IRS, and
 Respondent's sole witness, testified that while union check-offs and
 terminations were discussed during the negotiations there were no
 discussions or negotiations concerning legislative checkoffs.
 
    Other than indicating that the Union had submitted the proposals set
 forth above during the negotiations, Mr. Des Roches did not go into any
 detail concerning what transpired with respect to such proposals during
 the negotiations, nor did he give any reasons for the non-inclusion of
 the Union's proposals in the current NORD and Service Center Agreements.
 
    With respect to the Union's proposal concerning the use of Government
 Cars, Mr. Des Roches acknowledged that the subject was not specifically
 broached during the negotiations dealing with per diem pay, etc. to
 union stewards.
 
    Both Mr. Frank Ferris, Director of Negotiations for the NTEU, who
 attended many of the pre-contract negotiations, and Mr. Des Roches
 acknowledged that physical examinations were only discussed in
 connection with such examinations for pregnant employees.
 
    As to the proposal dealing with Geographic Selection of Work Sites,
 Mr. Des Roches testified that such subject was only discussed in
 connection with the negotiation concerning employees working at home.
 
    Article 17, Section 2 and Article 40 of the NORD Agreement, and
 Article 16, Section 2 and Article 39 of the Service Center Agreement
 contain provisions dealing with dues check-off and maternity leave
 examinations in connection with fitness for duty.  The maternity leave
 provision makes no mention of the employee's right to select her own
 doctor, and the check-off provision is limited to union dues.
 
                        Discussion and Conclusions
 
    Respondent takes the position that, in the absence of employer
 initiated changes, it is under no obligation to bargain over mid-term
 proposals concerning working conditions, etc., submitted by the Union.
 In the alternative, Respondent takes the position that it is under no
 obligation to bargain over any subjects which were discussed, or could
 have been discussed, during the contract negotiations leading up to the
 NORD and Service Center Agreements.
 
    The General Counsel and the Union, on the other hand, take the
 position that the Respondent is obligated to bargain over the mid-term
 proposals submitted by the Union and that the Union did not waive its
 rights to bargain over the six mid-term proposals during the
 negotiations leading up to the current collective bargaining agreements.
 
    In support of its position with respect to mid-term bargaining, the
 Union and the General Counsel rely for the most part on two Circuit
 Court decisions in the private sector, i.e., Jacobs Manufacturing v.
 NLRB, 196 F.2d 680 and NL Industries v. NLRB 536, F.2d 786, wherein the
 Courts concluded that in the absence of a waiver, an employer has the
 duty and obligation to bargain with respect to subjects which were
 neither discussed nor embodied in any of the terms of an existing
 collective bargaining contract.  With regard to the waiver issue, the
 General Counsel and the Union take the position that the record falls
 short of establishing that the six mid-term proposals were fully
 discussed during pre-contract negotiations to the extent that the Union
 consciously and unequivocally waived its right to future bargaining on
 such subjects.
 
    Respondent acknowledges the private sector law but takes the position
 that a different conclusion should be reached in the public sector since
 the industrial strife occasioned by strikes and lockouts which mid-term
 bargaining is designed to prevent, is not present in the public sector.
 In this context, while it is true that the Court in Jacobs
 Manufacturing, supra, did allude to the fact that the absence of
 mid-term bargaining in the private sector might lead to industrial
 strife occasioned by strikes and lockouts, it did not base its decision
 with respect to the necessity for mid-term bargaining solely on that
 factor.  The main issue before the court in Jacobs, supra, was the
 impact of Section 8(d) /10/ on mid-term bargaining.  As noted above, the
 Court, citing the precise language of the Statute, concluded that an
 employer was obligated to enter mid-term bargaining with respect to
 proposals encompassing terms and conditions of employment which were
 neither discussed nor encompassed in the collective bargaining
 agreement.
 
    Neither a review of the legislative history nor a literal reading of
 the Federal Services Labor-Management Relations Statute compels a
 different conclusion with respect to mid-term bargaining than that
 currently existing in the private sector.  Moreover, to hold otherwise,
 would give a distinct advantage to agencies, since only they would be
 free to initiate mid-term changes in conditions of employment.  Giving
 such an advantage to employers would run counter to the intent of
 Congress which sought to put agencies and unions on an equal footing in
 the matter of collective bargaining.  To insure such equal footing,
 Congress went so far as to authorize payment of travel and per diem
 expenses as well as utilization of official time for employees
 representing exclusive representatives in both basic and mid-term
 collective bargaining.  See, Interpretation and Guidance, 2 FLRA No. 31;
  Bureau of Alcohol, Tobacco and Firearms, Western Region, Dept. of
 Treasury, San Francisco, U.S. Ct of Appeals, (9th circuit), BNA, Govt.
 Employees Relations Reporter, No. 958, April 12, 1982, pg. 37.
 
    Further, contrary to the position of the Respondent, I do not believe
 that the full scope grievance procedure mandated by the Statute provides
 an effective substitute for mid-term bargaining.  Such grievance
 procedures are generally only applicable to interpretation and
 enforcement of existing terms and conditions of employment and make no
 provision for proposals dealing with the institution of new terms or
 conditions of employment.
 
    Finally, with respect to Respondent's position concerning the absence
 of an obligation to bargain over a union's mid-term bargaining proposal,
 I do not agree that the Assistant Secretary's decision in Army and Air
 Force Exchange Region Headquarters, Case No. 22-6657(CA), Ruling on
 Requests for Review, Case No. 779, holds that there is no mandatory
 obligation on an activity to bargain over a union's mid-term bargaining
 proposals.  While it is true that the Acting Regional Administrator did
 make such a statement in his letter dismissing the Complaint, the
 Assistant Secretary, however, affirmed the Acting Regional
 Administrator's dismissal on the sole ground that the agency had indeed
 bargained on the mid-term proposal.
 
    Having concluded that the Respondent is obligated to bargain over
 mid-term bargaining proposals submitted by a union, the sole question
 remaining for resolution is whether the Union in the instant case waived
 its rights during the negotiations leading up to the current NORD and
 Service Center Agreements to bargain over the six mid-term proposals
 submitted on July 29, 1981.
 
    It is well established that a waiver will be found only if it can be
 shown that the exclusive representative clearly and unmistakably waived
 its statutory right to negotiate on the proposals in dispute.
 Department of the Air Force, U.S. Air Force Academy & AFGE, AFL-CIO,
 Local 1867, 6 FLRA No. 100;  Department of the Air Force, Scott Air
 Force Base, Illinois & NAGE, Local R7-23, 5 FLRA No. 2.  The withdrawal
 of a contract proposal or failure to pursue a demand in contract
 negotiations does not constitute a waiver.  IRS, Jacksonville, Florida
 Service Center, 1 FLRA No. 35;  IRS Fresno Service Center, A/SLMR No.
 1119;  NASA Kennedy Space Center, Florida, A/SLMR No. 223;  Beacon
 Journal Publishing Co., 164 NLRB 734;  The Press Co., Inc., 121 NLRB
 976, 178.
 
    Applying the above established principles of law to the record
 evidence herein, I cannot find that the Union expressly waived its
 rights with respect to mid-term bargaining on the six proposals under
 consideration herein.  Thus, I find, contrary to the testimony of Mr.
 Des Roches, that Article 39 and Article 38, of the NORD and Service
 Center Agreements, respectively, are not what are generally referred to
 as "zipper clauses", wherein a union relinquishes all rights to
 bargaining on all subjects for the term of the agreement.  This
 conclusion is supported by Mr. Des Roches' admission that he had been
 unsuccessful in obtaining "a written waiver from the Union that gave up
 any and all rights during the life of the (collective bargaining)
 agreement".
 
    Accordingly, if the Respondent is to succeed in its waiver argument,
 it must be established that the six proposals were fully discussed
 during the negotiations leading up to the NORD and Service Center
 Agreements and that the Union consciously and unequivocally waived its
 rights to future bargaining thereon.  Contrary to the contention of the
 Respondent, I can not find that the record supports such a conclusion.
 
    The record falls short of establishing that parties did in fact
 discuss the Union's proposals dealing with Government Cars, Legislative
 Salary Check Off, Fitness for Duty, Work at Home, Geographic Selection
 of Work Sites and the employee's right to remain silent at all
 interviews or investigations that could lead to discipline.  In fact,
 Mr. Des Roches acknowledged that there were no discussions concerning
 legislative checkoff or the use of government cars.  Similarly, Mr. Des
 Roches' testimony with regard to the proposals dealing with Work at Home
 and Geographic Selection of Work Sites indicates that the only
 discussion of such subjects occurred with respect to the pre-contract
 proposal dealing with the right of certain employees to work one hour in
 the morning at their respective homes making telephone calls and
 preparing reports.  Inasmuch as it is apparent that there is no
 relationship between the two proposals and the proposal discussed during
 the pre-contract negotiations, I can not conclude that such proposals
 were fully discussed and that the Union consciously and unequivocally
 waived its rights to future bargaining thereon.
 
    With respect to the Union's proposals dealing with (1) the employees'
 right to remain silent during investigations, etc., which could lead to
 discipline and (2) fitness for duty examinations, the record reveals
 that such proposals were also not fully discussed during the
 negotiations leading up to the current NORD and Service Center
 Agreements.  Thus, Mr. Des Roches acknowledged that the only discussions
 concerning fitness for duty involved maternity situations and not other
 situations where physicals would be required.  Additionally, the
 existing contracts only refer to the payment for such physicals and not
 the selection of a doctor to perform such physicals.
 
    Although Mr. Des Roches contended that the proposal dealing with
 silence during investigations was substantially the same as the Union's
 pre-contract proposal, a review of both documents indicates that the
 pre-contract proposal dealt solely with inspection investigations while
 the mid-term proposals dealt with all investigations and/or interviews
 which could lead to disciplinary action.
 
    Accordingly, I find insufficient basis for concluding that the
 Union's mid-term proposals dealing with silence during investigations
 and fitness for duty were fully discussed during pre-contract
 negotiations and that the Union consciously and unequivocally waived its
 rights to future bargaining thereon during the term of the existing
 collective bargaining agreements.
 
    Moreover, it is noted that the record, other than the testimony of
 Mr. Des Roches, which in the main merely identified the proposals
 submitted by the Union during the pre-contract negotiations and
 indicated that there had been some discussions thereon, is void of any
 evidence setting forth the details of any such discussions.  In such
 circumstances, it is impossible to establish, as contended by the
 Respondent, that a waiver did occur.  In fact, on the basis of the
 record evidence, the only thing that can be concluded, is that the Union
 submitted proposals which for some unexplained reasons were not included
 in the subsequent contracts.
 
    As noted above, the withdrawal of a contract proposal or failure to
 pursue a demand in contract negotiations does not constitute a waiver.
 The vice in reaching a contrary conclusion is eloquently set forth by
 the NLRB in The Press Co. Inc., supra, wherein the Board stated as
 follows:
 
          To hold that, without regard to the nature of precontract
       negotiations, the mere discussion of a subject not specifically
       covered in the resulting contract removes the matter from the
       realm of collective bargaining during the contract term would be
       to place a premium (a) upon an employer's ability to avoid having
       the subject included in the contract, despite his knowledge of the
       union's position that it was a bargainable matter and not within
       his unilateral control;  and (b) upon the union's ability to have
       the subject specifically referred to in the contract by engaging--
       if necessary-- in a strike.  Such a doctrine would inevitably
       result in increasing the area of potential conflict in the
       interests of the parties at the bargaining table.  Thus, the union
       would feel constrained to refrain from raising questions on which
       it feared agreement might not be reached lest it be held to have
       bargained away its interest therein.  However, unless the union
       was possessed of some special prescience, its estimate of the
       employer's position on certain important matters might well be
       erroneous and these would remain unresolved, possibly to plague
       the parties during the contract term.  On the other hand, the
       employer would be encouraged to raise all conceivable issues and
       then to resist their inclusion in the contract, in order to retain
       the right of unilateral action;  this, in turn, would require
       that, once a subject was mentioned, the union take an adamant
       position in insisting upon its inclusion.  But many of the
       questions thus raised might otherwise never have been in issue if
       the parties were permitted to await the events giving rise to
       their importance.  By encouraging the union to seek an inadequate
       agreement or requiring inclusion in the agreement of all these
       matters, many of which might be only of contingent significance at
       the time of negotiation, a needless impediment would be placed in
       the way of successful collective bargaining.
 
    Upon the basis of the above analysis and conclusions I find that the
 Respondent violated Sections 7116(a)(1) and (5) of the Federal Service
 Labor-Management Relations Statute by virtue of its actions in refusing
 to negotiate over the mid-term proposals submitted by the Union on July
 29, 1981.
 
    Accordingly, I recommend that the Authority issue the following Order
 designed to effectuate the purposes and policies of the Statute.
 
                                   ORDER
 
    Pursuant to Section 7118(a)(7)(A) of the Federal Service
 Labor-Management Relations Statute, 5 U.S.C.Section 7118(a)(7)(A), and
 Section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section
 2423.29(b)(1), the Authority hereby orders that the Internal Revenue
 Service shall:
 
    1.  Cease and desist from:
 
          (a) Refusing to enter into mid-term bargaining negotiations
       with the National Treasury Employees Union as the exclusive
       representative of its employees in appropriate units.
 
          (b) In any like or related manner, interfering with,
       restraining or coercing unit employees represented by the National
       Treasury Employees Union, in the exercise of their rights assured
       by the Statute.
 
    2.  Take the following affirmative actions in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Upon request, bargain collectively with the National
       Treasury Employees Union with respect to its proposals concerning
       Government Cars, Employee Investigations, Legislative Salary
       Check-Off, Fitness for Duty, Work at Home and Geographic Selection
       of Work Sites, or other terms or conditions of employment that are
       not already referred to in, or covered by, the terms of an
       existing collective bargaining agreement.
 
          (b) Post at its offices covered by the NORD and Service Center
       Agreements 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 Deputy
       Commissioner of the Internal Revenue Service and they shall be
       posted for 60 consecutive days thereafter in conspicuous places,
       including all places where notices to employees are customarily
       posted.  The Deputy Commissioner shall take reasonable steps to
       insure that such notices are not altered, defaced, or covered by
       any other material.
 
          (c) Notify the Federal Labor Relations Authority, in writing,
       within 30 days from the date of this Order as to what steps have
       been taken to comply herewith.
 
                                       BURTON S. STERNBURG
                                       Administrative Law Judge
 
 Dated:  June 15, 1982
         Washington, D.C.
 
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT refuse to enter into mid-term bargaining negotiations with
 the National Treasury Employees Union as the exclusive representative of
 our employees in appropriate units.  WE WILL NOT in any like or related
 manner, interfere with, restrain or coerce unit employees represented by
 the National Treasury Employees Union, in the exercise of their rights
 assured by the Statute.  WE WILL upon request, bargain collectively with
 the National Treasury Employees Union with respect to its proposals
 concerning Government Cars, Employee Investigations, Legislative Salary
 Check-Off, Fitness for Duty Examinations, Work at Home and Geographic
 Selection of Work Sites, or other terms or conditions of employment that
 are not already referred to in, or covered by, the terms of an existing
 collective bargaining agreement.
                                       (Agency or Activity)
 
 Dated:  . . .  By:  (Signature) This Notice must remain posted for 60
 consecutive days from the date of posting and must not be altered,
 defaced or covered by any other material.  If employees have any
 questions concerning this Notice or compliance with any of its
 provisions, they may communicate directly with the Regional Director of
 the Federal Labor Relations Authority, Region 3, whose address is:  1111
 18th Street, N.W., Washington, D.C., 20036, and whose telephone number
 is:  (202) 653-8452.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ These agencies were granted permission to participate in this
 proceeding pursuant to section 2429.9 of the Authority's Rules and
 Regulations.
 
 
    /2/ Section 7101 provides in relevant part as follows:
 
    Sec. 7101.  Findings and purpose
 
          (a) The Congress finds that--
 
          (1) experience in both private and public employment indicates
       that the statutory protection of the right of employees to
       organize, bargain collectively, and participate through labor
       organizations of their own choosing in decisions which affect
       them--
 
          (A) safeguards the public interest,
 
          (B) contributes to the effective conduct of public business,
       and
 
          (C) facilitates and encourages the amicable settlements of
       disputes between employees and their employers involving
       conditions of employment;  and
 
                                .  .  .  .
 
          Therefore, labor organizations and collective bargaining in the
       civil service are in the public interest.
 
          (b) It is the purpose of this chapter to prescribe certain
       rights and obligations of the employees of the Federal Government
       and to establish procedures which are designed to meet the special
       requirements and needs of the Government.  The provisions of this
       chapter should be interpreted in a manner consistent with the
       requirement of an effective and efficient Government.
 
 
    /3/ See, in this connection, Department of Defense v. Federal Labor
 Relations Authority, 685 F.2d 641, 644 (D.C. Cir. 1982) and Department
 of Defense, Army-Air Force Exchange Service v. Federal Labor Relations
 Authority, 659 F.2d 1140, 1145 (D.C. Cir. 1981).
 
 
    /4/ See, e.g., Federal Aviation Administration, Northwest Mountain
 Region, Seattle, Washington, 14 FLRA 644 (1984), in which the Authority
 determined in part that where parties have elected to negotiate over
 "permissive" subjects of bargaining, i.e., those matters which are
 excepted from the obligation to bargain under section 7106(b)(1) of the
 Statute or those matters which are outside the required scope of
 bargaining under the Statute, stability in Federal labor-management
 relations can be achieved by requiring the parties to adhere to those
 terms during the life of the agreement.
 
 
    /5/ Section 7215(a)(1) of the Senate Bill provided:
 
    Sec. 7215 Representation rights and duties
 
          (a) If a labor organization has been accorded exclusive
       recognition, such organization shall be--
 
          (1) the exclusive representative of employees in the unit and
       is entitled to act for and negotiate agreements covering all
       employees in the unit.
 
 
    /6/ S. Rep. No. 95-969, 95th Cong. 2d Sess. 40 (1978), reprinted in
 Legislative History of the Federal Service Labor-Management Relations
 Statute, Title VII of the Civil Service Reform Act of 1978, at 764
 (1979).
 
 
    /7/ The Senate Report as cited at note 6, supra, also stated:
 "(w)here agency management proposes to change established personnel
 policies, the exclusive representative must be given notice of the
 proposed changes and an opportunity to negotiate over such proposals to
 the extent they are negotiable".  This statement is consistent with the
 precedent under the Statute's predecessor, Executive Order 11491, as
 amended.  In this regard, case law under the Executive Order ". . .
 require(d) adequate notice and an opportunity to negotiate prior to
 changing established personnel policies and practices and matters
 affecting working conditions during the term of an existing agreement
 unless the issues thus raised (were) controlled by current contractual
 commitments, or a clear and unmistakable waiver (was) present." See the
 1975 Report and Recommendations of the Federal Labor Relations Council
 (to the President) on the Amendment of Executive Order 11491, as
 Amended, Labor-Management Relations in the Federal Service (1975), at
 41.  Moreover, it had never been established under the Executive Order
 that there was any obligation to bargain over union initiated mid-term
 proposals.  Rather, in Army and Air Force Exchange Service, Capitol
 Exchange Region Headquarters, Case No. 22-6657(CA), 2 Rulings on Request
 for Review 561 (1976), the Assistant Secretary of Labor for
 Labor-Management Relations adopted the dismissal of a complaint which
 alleged that agency management had violated its duty to bargain in good
 faith by refusing to negotiate concerning the union's mid-contract
 proposal that it be granted the use of an employee breakroom to conduct
 a union membership drive.  The complaint had been dismissed below in
 part on the basis that the Executive Order "does not impose any
 mandatory obligation on an Activity to bargain over changes proposed or
 requested by the Union during the term of the contract and does not give
 the exclusive representative any right to demand such bargaining." (Id.
 at 562) In adopting the dismissal, the Assistant Secretary noted among
 other things that "the parties' negotiated agreement provides for union
 membership drives, although the use of agency facilities for such
 purposes is not specifically outlined therein." Accordingly, an
 obligation to negotiate union initiated mid-term bargaining proposals
 did not exist under the Executive Order.  The legislative history of the
 Statute evinces an intent on the part of Congress to continue this
 policy.
 
 
    /8/ Although the charge originally relied upon Respondent's refusal
 to negotiate over the nine proposals, during the course of the hearing
 the General Counsel made it clear that for reasons not set forth in the
 record, it was withdrawing any allegations of the Complaint predicated
 on the proposals dealing with Emergency Suspensions, Administrative
 Holidays and Professional Difference of Opinion.
 
 
    /9/ The Union's five-page proposal also contained language allowing
 the employee to remain silent at the inspection interview, but made the
 employee subject to removal if the employ