18:0361(48)CA - IRS (District Office Unit), Treasury and NTEU -- 1985 FLRAdec CA



[ v18 p361 ]
18:0361(48)CA
The decision of the Authority follows:


 18 FLRA No. 48
 
 INTERNAL REVENUE SERVICE 
 (DISTRICT OFFICE UNIT) 
 DEPARTMENT OF THE TREASURY 
 Respondent
 
 and 
 
 NATIONAL TREASURY EMPLOYEES 
 UNION 
 Charging Party
 
                                            Case No. 3-CA-774
 
                            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 take certain affirmative
 action.  Thereafter, the Respondent and the General Counsel each filed
 exceptions to the Judge's Decision with supporting briefs, and the
 Charging Party filed an opposition to the Respondent's exceptions and
 cross-exceptions to the Judge's Decision.  /1/
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommendations only to the extent
 consistent herewith.
 
    As more fully set forth in the attached Decision, the Judge found
 that, in October 1979, the Respondent, Internal Revenue Service
 (District Office Unit), Department of Treasury, notified the Charging
 Party, National Treasury Employees Union (the Union), that the Office of
 Personnel Management (OPM) had delegated authority to the Department of
 the Treasury to recruit and examine applicants for the position of
 Internal Revenue Agent, GS-512, at the GS-5 and GS-7 levels, and that
 this authority was redelegated to the Respondent effective November
 1979.  Further, the Judge found that, although not obligated to do so,
 Respondent "decided to use the same procedures, methodology and criteria
 previously utilized by OPM?  so that "no change occurred in the manner
 in which the recruitment and examination was performed other than the
 location of the offices" where applications were to be filed.
 
    The Judge concluded that the Respondent violated section 7116(a)(1)
 and (5) of the Statute by refusing to bargain with the Union concerning
 the latter's proposed procedures for the implementation and impact of a
 delegation of authority to the Respondent concerning the recruitment and
 examination of applicants for the above-mentioned unit positions.  In
 reaching his conclusion that the Respondent violated the Statute as
 alleged, the Judge reasoned that the Respondent had been given control
 over matters affecting working conditions over which it previously had
 no control, thereby giving rise to a duty to bargain because any "past
 practice" which had developed when the function was under OPM "had no
 bearing on the practice which Respondent might now choose to utilize . .
 . ." However, the Judge also found that no change in such recruitment
 and selection procedures had occurred.
 
    Subsequent to the issuance of the Judge's Decision herein, the
 Authority issued its decision in Internal Revenue Service, 17 FLRA No.
 103 (1985), stating in pertinent part:
 
          (C)ongress 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.  This distinction indicates
       that other than negotiations leading to a basic collective
       bargaining agreement, there is no obligation to bargain over
       union-initiated proposals.  (footnote omitted)
 
    In the instant case, the record is clear that the parties' collective
 bargaining agreement was in effect when the Respondent notified the
 Union of the delegation of authority from OPM for the recruitment and
 examination of applicants for the position of Internal Revenue Agent,
 GS-512.  Thereafter, the Union submitted its bargaining proposals and
 demanded negotiations.  However, despite the fact that the Respondent
 had some flexibility as to whether it would follow OPM's practices in
 fulfilling its newly delegated responsibilities, the procedures,
 methodology and criteria utilized in the process in fact were unchanged.
  In these circumstances, the Authority concludes that the Respondent had
 no duty to bargain over proposals initiated by the Union during the term
 of an existing collective bargaining agreement, and that the
 Respondent's refusal to do so therefore did not constitute a violation
 of section 7116(a)(1) and (5) of the Statute.  /2/ Accordingly, the
 Authority shall order that the complaint be dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CA-774 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., June 7, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Michael S. Sussman, Esq.
    For the Respondent
 
    Joseph V. Kaplan, Esq.
    For the Charging Party
 
    Peter A. Sutton, Esq.
    For the General Counsel
 
    Before:  SALVATORE J. ARRIGO, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq.
 (herein referred to as the Statute).
 
    Upon an unfair labor practice charge filed by the National Treasury
 Employees Union (herein referred to as the Union), against the Internal
 Revenue Service (District Office Unit), Department of the Treasury
 (herein referred to as Respondent or IRS), on December 26, 1979, as
 amended on January 30, 1980, /3/ the General Counsel of the Federal
 Labor Relations Authority (herein referred to as the Authority), by the
 Regional Director for Region 3, issued a Complaint and Notice of Hearing
 on October 30, 1981.  The Complaint alleged that Respondent violated
 section 7116(a)(1) and (5) of the Statute by refusing to bargain with
 the Union "over the procedures leading to implementation and the impact"
 of a delegation of authority to Respondent concerning the establishment
 of employment registers for Internal Revenue Agents, classification
 GS-512.  Respondent acknowledges it refused to bargain with the Union
 but contends that it had no obligation to bargain on the matter.
 
    A hearing on the Complaint was conducted on January 5, 1982 at which
 time the parties were represented by counsel and afforded full
 opportunity to adduce evidence, call, examine and cross-examine
 witnesses and argue orally.  /4/ Briefs were filed by all parties.
 
    Upon the entire record in this matter, my observation of the
 witnesses and their demeanor, and my evaluation of the evidence, I make
 the following:
 
                             Findings of Fact
 
    At all times material herein Respondent has recognized the Union as
 the exclusive collective bargaining representative for various IRS
 employees including Internal Revenue Agents in the GS-512
 classification.  Approximately 15,000 employees are employed in the
 Internal Revenue Agent GS-512 classification and pay levels GS-5 and
 GS-7 appear to be entrance level jobs for that classification.  /5/
 
    Prior to October 1979 the Office of Personnel Management (OPM) was
 fully authorized and responsible for the recruitment and examination of
 applicants for the GS-512 classification concerned herein.  When
 recruiting, OPM issued a nationwide announcement of vacancies for
 Internal Revenue Agent positions which went to all OPM area offices,
 State employment offices, Federal Job Information Centers and all
 "agency user offices." The announcement also designated which OPM office
 would receive applications of interested persons.  Upon receipt of
 applications OPM personnel, using its own guidelines, rated the
 applicants by score and placed them on a register in order of score
 achieved.  The candidates were issued a notice of rating and advised to
 submit their applications to the IRS along with a copy of the notice of
 rating.  A Special Examining Unit of IRS, under the delegated authority
 from OPM and operating "as an arm of OPM," /6/ listed the eligible
 candidate on a certificate in order of rating scores from which a
 candidate would be selected for employment by IRS.
 
    By letter dated October 23, 1979 Respondent notified the Union that
 OPM had delegated to the Department of the Treasury authority to recruit
 and examine applicants nationwide for the position of Internal Revenue
 Agent GS-512 at the GS-5 and GS-7 levels and that the Department of the
 Treasury redelegated this authority to IRS.  The Union was informed that
 the delegation to IRS would be effective November 1, 1979.  The
 delegation from OPM, a copy of which was provided to the Union,
 instructed IRS to comply with law, OPM regulations and Federal Personnel
 Manual instructions, but IRS was not obligated to follow OPM work
 processing procedures and was accorded a substantial degree of
 flexibility to depart from OPM's practices in fulfilling its newly
 delegated recruitment and examination responsibilities.  /7/ However,
 IRS decided to use the same procedures, methodology and criteria
 previously utilized by OPM in the recruitment and examination of GS-512
 applicants.  Accordingly, no change occurred in the manner in which the
 recruitment and examination was performed other than the location of the
 offices where individuals would file their applications was altered.
 
    The Union had a substantial interest in the recruitment and
 examination procedures in that unit employees may compete for a vacancy
 within the organization by using internal promotion procedures or
 obtaining an appointment to the position by responding to a vacancy
 announcement and competing with other applicants for a favorable
 position on a register.  In a letter dated November 7, 1979 to IRS the
 Union invoked its ". . . right to negotiate over the changes wrought by
 the OPM-DOT delegation of authority to IRS . . . ." In the letter the
 Union indicated its desire for a meeting to discuss the matter further
 before submitting proposals.  On November 20, 1979 the Union submitted
 16 bargaining proposals relative to this subject.  The proposals
 included, inter alia, such matters as announcements to employees;
 contents of the announcement;  assistance to employees in assembling and
 presenting qualifications;  informing employees found ineligible,
 unsuitable or passed over as to the reasons therefor;  waiving
 time-in-grade restrictions;  the location for employee submissions;
 payment of costs for employee interviews;  recruiting efforts among
 minority or women employees;  informing the Union as to areas IRS
 believes an adverse impact on employees exists;  selection factors being
 uniform throughout the country;  Union receipt of quarterly reports sent
 to OPM, and;  the right to grieve.
 
    On or about December 12, 1979 IRS met with the Union and informed
 them that it did not have an obligation to and would not enter into
 negotiations over the Union's proposals.  IRS thereafter continued to
 recruit and examine applicants for GS-512 vacancies as set forth above.
 
                        Discussion and Conclusions
 
    The General Counsel contends that the Union's proposals of November
 20, 1979 were related to terms and conditions of employment, negotiable
 under the Statute, not contrary to the provisions of the OPM delegations
 nor inconsistent with any law or regulation.  Respondent does not
 challenge General Counsel's contentions other than that its refusal to
 bargain with the Union violated the Statute.  Respondent takes the
 position that since after the delegation from OPM it continued to
 perform the recruitment and selection in a manner virtually identical to
 the way it was performed when OPM was responsible for these functions,
 no change in working conditions occurred and, if no change occurred,
 there could be no adverse effect or substantial impact upon unit
 employees.
 
    I reject Respondent's contentions.  In my view a very substantial and
 essential change occurred:  Respondent was given control over matters
 affecting work conditions that it heretofore had no control.  When
 control over recruitment and selection procedures resided with OPM, the
 Union could not demand to bargain on these matters since there was no
 privity between the Union and OPM.  After the delegation, recruitment
 and selection came under the control of Respondent and the subject
 became an area open to negotiation, to the extent such matters are
 negotiable under the Statute.  Thus, any "past practice" which developed
 under OPM has no bearing on the practice which Respondent might now
 choose to utilize, be it to continue the OPM practice or modify the
 procedures to the degree allowed under the delegation.  Accordingly,
 since recruitment and selection proposals relate to conditions of
 employment and no issue exists as to their negotiability under the
 Statute, their conformance to the provisions of the OPM delegation nor
 inconsistency with law or regulation, I conclude that Respondent's
 refusal to bargain on the Union's proposals of November 20, 1979
 violated section 7116(a)(1) and (5) of the Statute.  /8/
 
                                  Remedy
 
    The Union and the General Counsel request that in addition to
 ordering Respondent to negotiate with the Union on its proposals, the
 order should provide that any agreement negotiated by the parties should
 have a retroactive effect.  No cases have been cited where the Authority
 has previously granted such an order.  However, when dealing with status
 quo ante remedies, which subject is somewhat analogous to the relief
 requested herein, the Authority indicated that the appropriateness of
 such a remedy would be determined on a case-by-case basis.  Federal
 Correctional Institution, 8 FLRA 604 (1982), at 606.  The Authority
 stated in Federal Correctional Institution that among the factors to be
 considered in cases involving a violation of the duty to bargain over
 impact and implementation, as herein, would include:
 
          "(1) whether, and when, notice was given to the Union by the
       agency concerning the action or change decided upon;  (2) whether,
       and when, the union requested bargaining on the procedures to be
       observed by the agency in implementing such action or change
       and/or concerning appropriate arrangements for employees adversely
       affected by such action or change;  (3) the willfulness of the
       agency's conduct in failing to discharge its bargaining
       obligations under the Statute;  (4) the nature and extent of the
       impact experienced by adversely affected employees;  and (5)
       whether, and to what degree, a status quo ante remedy would
       disrupt or impair the efficiency and effectiveness of the agency's
       operations."
 
 Assuming arguendo that the Authority is empowered to grant the relief
 sought and considering all the facts and circumstances related to the
 case herein, and taking into consideration the various factors set forth
 in Federal Correctional Institution, and noting that approximately
 15,000 individuals are employed in the GS-512 classification of which I
 assume a substantial number of GS-5 and GS-7 vacancies have been filled
 since November 1, 1979, I do not conclude that the relief sought is
 warranted herein.  The request is therefore denied.  /9/
 
    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 2430.20 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:
 
          (a) Failing and refusing to negotiate in good faith with the
       National Treasury Employees Union, the employees' exclusive
       collective bargaining representative, regarding proposals
       concerning the procedures to be observed in establishing
       employment registers for GS-512 classification Internal Revenue
       Agents and appropriate arrangements for employees adversely
       affected by the establishment of such registers.
 
          (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,