19:0401(55)CA - IRS and NTEU -- 1985 FLRAdec CA



[ v19 p401 ]
19:0401(55)CA
The decision of the Authority follows:


 19 FLRA No. 55
 
 INTERNAL REVENUE SERVICE
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 3-CA-20489
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding, finding that Internal Revenue Service (the
 Respondent) had engaged in the unfair labor practices alleged in the
 complaint and recommending that it be ordered to cease and desist
 therefrom and take certain affirmative action.  Thereafter, the
 Respondent filed exceptions to the Judge's Decision and a supporting
 brief.
 
    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.
 
    The Judge found that the Internal Revenue Service (the Respondent)
 violated section 7116(a)(1) and (5) of the Statute by refusing to
 negotiate concerning proposals submitted by the National Treasury
 Employees Union (the Union) during the term of an existing collective
 bargaining agreement even though such proposals were not related to any
 changes initiated by the Respondent.  The Judge concluded 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 Authority does not agree.
 
    Subsequent to the Judge's Decision in the instant case, the Authority
 issued its Decision and Order in Internal Revenue Service, 17 FLRA No.
 103 (1985), petition for review filed sub nom. National Treasury
 Employees Union v. FLRA, No. 85-1361 (D.C. Cir. June 14, 1985), in which
 it found that agencies have no 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.  /1/ In so finding, however, the Authority further noted,
 inter alia, that "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."
 
    In the instant case, during negotiations between the Union and the
 Respondent for a collective bargaining agreement, the Union submitted
 two proposals concerning continuing legal education for certain unit
 employees.  The Respondent declared both proposals nonnegotiable, and
 the Union filed a negotiability appeal with the Authority.  When the
 services of the Federal Mediation and Conciliation Service were invoked,
 the Union withdrew the two proposals, and the parties later executed a
 collective bargaining agreement which contained no reference to
 continuing legal education.  However, the agreement contained a
 provision which read:  "Proposals declared nonnegotiable and
 subsequently found negotiable by the . . . Authority will be timely
 negotiated by the parties after the finding."
 
    Subsequently, during the term of the parties' agreement, the
 Authority issued its decision on the negotiability issue noted above,
 finding that the proposals were nonnegotiable as drafted, but indicating
 how they might be revised to be made compatible with existing law and
 thus rendered negotiable.  National Treasury Employees Union and
 Department of the Treasury, Internal Revenue Service, 6 FLRA 508 (1981).
  The Union sought to bargain concerning the two proposals and the
 Respondent refused, contending that it had no duty to bargain mid-term
 in the circumstances presented.  As noted above, the Authority has since
 held that an agency is not obligated to bargain concerning
 union-initiated mid-term bargaining proposals which are unrelated to
 changes in conditions of employment initiated by management.  Therefore,
 unless the parties' reopener provision is applicable, the Respondent's
 refusal to bargain herein did not constitute a violation of the Statute.
 
    The collective bargaining agreement involved herein clearly provides
 for reopening negotiations and for the parties to bargain in the event
 that the Authority determines proposals to be negotiable upon appeal.
 However, that circumstance did not occur herein, for the proposals
 submitted by the Union during negotiations and declared nonnegotiable by
 the Respondent were found to be nonnegotiable by the Authority on appeal
 and the Respondent therefore was under no obligation to bargain.  /2/
 Accordingly, the instant complaint must be dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CA-20489 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., July 31, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 3-CA-20489
 
    Ramona Hall, Esquire
    William L. Bransford, Esquire
       For the Respondent
 
    Mr. Frank D. Ferris
    Mr. Jeffrey H. Gelman
       For the Charging Party
 
    Sharon Prost, Esquire
    Bruce D. Rosenstein, Esquire
       For the General Counsel, FLRA
 
    Before:  GARVIN LEE OLIVER
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This decision concerns an unfair labor practice complaint issued by
 the Regional Director, Region Three, Federal Labor Relations Authority,
 Washington, D.C. against the Internal Revenue Service (Respondent),
 based on a charge filed by the National Treasury Employees Union
 (Charging Party, NTEU, or Union).  The complaint alleged, in substance,
 that Respondent violated sections 7116(a)(1) and (5) of the Federal
 Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the
 Statute), on March 22, 1982 by refusing to negotiate in good faith with
 the Union concerning two proposals submitted on March 10, 1982.  The
 proposals concerned reimbursement of costs and administrative leave for
 certain continuing legal education classes required of attorneys by
 state bars.
 
    Respondent contends that it has no obligation to negotiate over
 mid-term proposals initiated by NTEU that do not directly relate to
 management-initiated changes in conditions of employment.  Assuming such
 an obligation, Respondent maintains that this duty does not extend to
 subjects which were discussed during term negotiations.
 
    A hearing was held in Washington, D.C.  The Respondent, Charging
 Party, and the General Counsel were each represented and afforded full
 opportunity to be heard, adduce relevant evidence, examine and
 cross-examine witnesses, and file post-hearing briefs.  Based on the
 entire record, including my observation of the witnesses and their
 demeanor, I make the following findings of fact, conclusions of law, and
 recommendations.
 
                             Findings of Fact
 
    At all times material herein, Respondent has recognized the Union as
 the exclusive collective bargaining representative of appropriate units
 of Respondent's professional and non-professional District, Regional,
 and National Office employees.  (General Counsel's Ex. 1(e), 1(g).
 Negotiations between the Union and Respondent for a collective
 bargaining agreement covering these employees began in 1979.  (Tr.
 16-17.)
 
    During the course of these negotiations, on April 25, 1979, the Union
 submitted several proposals including two relating to the training and
 administrative leave contract articles.  The first sought agency
 reimbursement for all costs incurred by attorneys in attending
 continuing legal education courses, when required by state law to do so
 in order to continue to be licensed to practice law.  The second
 proposal sought to have the agency grant administrative leave to
 attorneys required to attend such continuing legal education courses.
 (General Counsel's Ex. 2, 3A, 3B;  Tr. 17-18.)
 
    These proposals came to the bargaining table for discussion early in
 May 1979.  IRS asked the Union to give a rationale for the proposals.
 The Union responded that since bar membership was a condition of IRS
 employment for lawyers, IRS should pay for lawyers to take the
 continuing legal education required by some state bars for continued
 membership in the bar.  IRS refused to accede to the Union proposal.
 IRS replied that employment as a lawyer was conditional on membership in
 the bar, and the responsibility to meet, and continue to meet, that
 condition was solely upon the employee.  (Tr. 19, 49-50.) IRS formally
 rejected the proposals when it failed to mention them in written
 counter-proposals dealing with other matters.
 
    The Union pursued its demand and, in subsequent discussions, on or
 about May 9, 1979, the IRS declared both proposals nonnegotiable.  The
 Union thereafter, also in May of 1979, submitted a negotiability appeal
 to the Authority which contained the above proposals.  IRS was furnished
 a copy of this appeal.  (Tr. 19, 51-52.)
 
    At some point during May 1979 the Union advised management that if
 management would be willing to settle some outstanding grievances on the
 basis of permitting attorneys to take the bar examination in two states,
 instead of one state, the Union would be willing to withdraw and settle
 the matter of continuing education.  (Tr. 58-59.) There is no evidence
 that this offer was accepted by IRS or specifically discussed further by
 the parties in relation to the Union's continuing education proposals.
 
    Contract negotiations on subjects other than continuing legal
 education continued.  By December 1979, with approximately 200 issues
 outstanding and unresolved, face-to-face negotiations had broken down.
 The assistance of a federal mediator had been requested, and the parties
 were submitting proposals through him.  (Tr. 20.) The parties had agreed
 that in this exchange of proposals each of the parties would give
 something to get something.  (Tr. 56.) Responding to a request by the
 mediator to narrow the number of issues outstanding, the Union formally
 withdrew from the bargaining table the two proposals on continuing legal
 education.  The Union did so because the proposals were then pending in
 a negotiability appeal before the Federal Labor Relations Authority, and
 the Union did not feel the IRS could be convinced that the proposals
 were in fact negotiable.  (Tr. 20-21, 31, Respondent Ex. 1(a) and 1(b).)
 The Federal Mediation and Conciliation Service does not handle issues
 that are pending before the Authority as negotiability appeals.  (Tr.
 36.) /3/
 
    IRS interpreted the withdrawal as the Union giving something to get
 something.  In January 1980 IRS agreed to settle outstanding grievances
 by permitting attorneys to take the bar examination in two states.  The
 grievances were settled on this basis.  There is no evidence that IRS,
 in doing so, specifically related its action to the Union's earlier
 offer in May 1979, or to the Union's subsequent withdrawal of the
 continuing legal education proposal.  (Tr. 59.)
 
    Thereafter, negotiations continued, and the ensuing contract between
 the parties became effective on January 26, 1981.  (Tr. 22;  Joint Ex.
 2.) The contract did not include any provisions on continuing legal
 education.  Rather, the matter of the negotiability of the two proposals
 on continuing legal education remained pending before the Federal Labor
 Relations Authority through this period and until the Authority decision
 in September, 1981.  (Tr. 22;  General Counsel's Ex. 4.) /4/
 
    On September 4, 1981, the Authority issued its decision on the
 negotiability issue, agreeing with Respondent that the continuing legal
 education proposals were nonnegotiable.  However, the Authority decision
 noted that the proposals could be made negotiable if they were revised
 to incorporate the applicable statutory limitations set forth in the
 Training Act.  National Treasury Employees Union and Department of the
 Treasury, Internal Revenue Service, 6 FLRA No. 97 (1981).  (General
 Counsel's Ex. 4.)
 
    Following its receipt of the negotiability determination referred to
 above, the Union, by letter dated September 22, 1981, again requested
 negotiations over the identical proposals.  The Union stated that the
 new contract's requirement, that both parties interpret provisions
 therein consistent with any statutory provisions, satisfied the
 Authority's decision and order.  (Tr. 23, General Counsel's Ex. 5.) IRS
 refused to negotiate.  IRS noted that the Authority's finding
 effectively disposed of the matter, and it was not required to negotiate
 on proposals which had already been found to be nonnegotiable.  (General
 Counsel's Ex. 6;  Tr. 67.)
 
    The Union, in approximately January 1982, filed an unfair labor
 practice charge over Respondent's refusal to bargain.  This charge,
 3-CA-20268, was subsequently dismissed by the Regional Director, Region
 III.  (General Counsel's Ex. 12, Tr. 38.) The dismissal was based on a
 determination that the proposals, as submitted on September 22, 1981,
 were not deemed to constitute revised proposals reflecting the legal
 requirements as set forth by the Authority in 6 FLRA No. 97.  (General
 Counsel's Ex. 12;  Tr. 39-40.)
 
    Upon learning of the dismissal, the Union revised its proposals in an
 effort to conform with the requirements set forth in 6 FLRA No. 97.
 (Tr. 40.) By letter dated March 10, 1982, the Union requested
 negotiations on the revised proposals.  (General Counsel's Ex. 10;  Tr.
 40.)
 
    By letter dated March 22, 1982, Respondent refused to bargain on the
 revised proposals.  In its response, Respondent did not declare the
 proposals nonnegotiable.  Respondent acknowledged that the proposals
 submitted had been "amended to include the statutory limitations
 necessary to make them negotiable on their face." Respondent based its
 refusal to bargain on two grounds.  It contended that the Union's
 withdrawal of the proposals during contract negotiations constituted a
 waiver by the Union.  Furthermore, it noted that the IRS had done
 nothing to open this subject up for mid-term negotiations.  (General
 Counsel's Ex. 11;  Tr. 68-69.)
 
    Respondent has made no changes in conditions of employment in the
 subject area of the two proposals.  (Tr. 33-34, 65.)
 
               Discussion, Conclusions, and Recommendations
 
    IRS contends that it has no obligation to bargain over mid-term
 proposals submitted by NTEU that do not directly relate to
 management-initiated changes in conditions of employment.  In the
 alternative, IRS maintains that it is under no obligation to bargain
 over any subject discussed during term negotiations.  IRS claims that
 the proposals were fully discussed by the parties and later withdrawn by
 the Union in writing in exchange for concessions made by the agency.
 
    The General Counsel and the NTEU take the position that IRS is
 obligated to bargain over mid-term proposals submitted by the Union.
 The General Counsel maintains that, in any event, the proposals at issue
 were, in fact, nothing more than a continuation of master contract
 negotiations over an issue that had been temporarily set aside pending
 the outcome of the negotiability appeal.  These parties also assert that
 the Union's withdrawal of the proposals during contract negotiations did
 not amount to a waiver of its right to negotiate over the issue of
 continuing legal education.
 
    The Authority has held that the contention that an agency has no duty
 to bargain with regard to changes in conditions of employment proposed
 by a union, but only with regard to changes proposed by the agency, "is
 clearly inconsistent with the definition and purpose of 'collective
 bargaining' under the Statute and therefore cannot be sustained."
 Library of Congress, 9 FLRA No. 51 (1982);  Library of Congress, 9 FLRA
 No. 52 (1982).  A few weeks prior to the Authority's decisions, Judge
 Burton S. Sternburg, in a case involving the same parties as the instant
 case, thoroughly canvassed the issues raised by this contention and
 reached the same conclusion.  See Internal Revenue Service and National
 Treasury Employees Union, Case No. 3-CA-20156, OALJ 82-92 (June 15,
 1982), appeal pending.  Judge Sternburg held that, under the Statute, an
 agency is obligated to enter mid-term bargaining with respect to
 proposals which were neither discussed nor encompassed in the collective
 bargaining agreement.  Substantially all that was said by Judge
 Sternburg concerning this issue is equally applicable here, and it would
 serve no purpose to enlarge this decision with a paraphrased repetition
 of what was in that opinion thoughtfully considered and carefully
 expressed.
 
    I also agree with the General Counsel's position that, even assuming
 arguendo that there were no obligation on Respondent to bargain over
 matters during the life of the contract that did not concern
 management-initiated changes, such a defense would not be applicable
 herein.  The proposals at issue were, in fact, nothing more than a
 continuation of master contract negotiations over an issue that had been
 temporarily set aside pending the outcome of the negotiability appeal.
 /5/
 
    With respect to Respondent's position that it had no obligation to
 bargain over any subject "discussed" during term negotiations, the
 Authority has previously held that "a waiver will be found only if it
 can be shown that the exclusive representative clearly and unmistakably
 waived its right to negotiate." Library of Congress, supra, 9 FLRA at
 429;  Department of the Air Force, Scott Air Force Base, Illinois, 5
 FLRA No. 2 (1981).  There is no evidence that the Union expressly waived
 its rights with respect to mid-term bargaining of the proposals under
 consideration here.  There is also no evidence of a "zipper clause",
 wherein each party agrees that the other shall not be obligated to
 bargain with respect to any matter not covered by the contract for the
 life of the agreement.
 
    For a matter to be considered waived by precontract negotiations, it
 must have been "fully discussed" or "consciously explored" and
 "consciously yielded" or "knowingly relinquished." This conduct permits
 a determination that one party clearly and unmistakably waived its
 interest in the matter and/or acceded to the position of the other.  Cf.
 Department of the Navy, Portsmouth Naval Shipyard, 4 FLRA No. 82 (1980);
  Bureau of Alcohol, Tobacco and Firearms, National Office and Central
 Region, 2 FLRA No. 67 (1980);  The Bunker Hill Co., 208 NLRB 27, 33,
 modified 210 NLRB 373 (1974);  The Beacon Journal Publishing Co., 164
 NLRB 734, 65 LRRM 1126 (1967);  Saint Mary's Hospital and Hotel, 260
 N.L.R.B. No. 175, 109 LRRM 1343 (1982).  Addressing the issue of waiver
 in Internal Revenue Service and National Treasury Employees Union,
 supra, Judge sternburg stated that, apart from an express waiver, a
 waiver by bargaining history must be established by showing that the
 "proposals were fully discussed during the negotiations . . . and that
 the Union consciously and unequivocally waived its rights to future
 bargaining thereon."
 
    The mere discussion of a subject not specifically covered in the
 resulting contract does not remove the matter from the realm of
 collective bargaining during the contract term.  The Press Co., Inc.,
 121 NLRB 976 (1958), quoted with approval in Internal Revenue Service,
 Case No. 3-CA-20156, supra.  And the withdrawal of a contract proposal,
 or failure to pursue a demand in contract negotiations, does not,
 without more, constitute a waiver.  See Internal Revenue Service, Case
 No. 3-CA-20156, supra (citing cases).
 
    Respondent asserts that the withdrawal of the contract proposals was
 made by the Union in order to obtain a concession from Respondent
 concerning the settlement of some grievances.  In the early stages of
 bargaining, the Union did make an offer to withdraw the proposals in
 exchange for settling some grievances.  However, the evidence does not
 show that Respondent ever accepted this offer, communicated its
 acceptance to the Union, or was acting pursuant to such a perfected
 agreement with the Union when it agreed to settle the grievances some
 seven months later.  The settlement of the grievances could well have
 stood on its own merits.  There is no clear evidence of a specific trade
 off with respect to the continuing legal education proposals.  The
 superficial agreement that each party, in presenting proposals to the
 mediator, would "give up something to get something" is not sufficient
 to show that the matter was fully discussed, consciously explored, and
 that the Union, by withdrawing the proposals, consciously yielded its
 rights to further bargaining following the determination of its
 negotiability appeal.
 
    The Union's pursuit of its negotiability appeal demonstrates
 continued resistance to Respondent's position, not acquiescence.
 Respondent made no effort to apprise the Authority of the withdrawal of
 the proposals from the bargaining table during the approximately
 twenty-two months between the withdrawal and the Authority's decision on
 the negotiability appeal.  This is in contrast to the action taken in
 another case where Respondent informed the Authority of the execution of
 an agreement covering a dispute and moved to dismiss the negotiability
 appeal.  It is also in contrast to the Union's action in another
 instance reflected in the record where the Union requested the Authority
 to withdraw an appeal.  The fact that no similar action was taken with
 regard to the two proposals involved here further supports the
 conclusion that the parties did not consider the Union's withdrawal as a
 clear and unequivocal waiver of its bargaining rights.
 
    The record does not support the conclusion that the proposals
 involved here were fully discussed during precontract negotiations and
 that the Union consciously yielded its rights to further bargaining
 thereon.  Accordingly, it is concluded that Respondent's refusal to
 bargain concerning the Union's altered proposal constitutes a violation
 of section 7116(a)(1) and (5) of the Statute, as alleged in the
 complaint.  Internal Revenue Service, 9 FLRA No. 27 (1982).
 
    Based on the foregoing findings and conclusions, it is recommended
 that the Authority issue the following Orde