24:0999(97)CA - IRS and NTEU -- 1986 FLRAdec CA



[ v24 p999 ]
24:0999(97)CA
The decision of the Authority follows:


 24 FLRA No. 97
 
 INTERNAL REVENUE SERVICE
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 3-CA-40436
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority because the
 Respondent filed exceptions to the attached Decision of the
 Administrative Law Judge.  The issue concerns whether the Respondent
 violated section 7116(a)(1) and (5) of the Federal Service
 Labor-Management Relations Statute (the Statute) by implementing a
 program entitled "Instructior Opportunities with Historically Black
 Colleges and Universities" (instructor program) without providing the
 Charging Party prior notice and an opportunity to negotiate over impact
 and implementation.  The Respondent filed exceptions to the Judge's
 decision;  however, the General Counsel and the Charging Party filed
 neither exceptions nor oppositions to the Respondent's exceptions.
 
                              II.  Background
 
    As the pertinent facts in this case are fully set forth in the
 Judge's Decision, they will be discussed only as relevant.  The Charging
 Party is the exclusive bargaining representative for a unit of employees
 who are among those given the opportunity to apply for the instructor
 program.  As described by the Judge, and undisputed, the Respondent
 announced and implemented the instructor program without providing prior
 notice to the Charging Party and the Respondent thereafter refused to
 negotiate concerning the the instructor program.  The Respondent
 implemented the program in five of its seven regions.  In the absence of
 any Historically Black Colleges and Universities (HBCUs) with accounting
 curricula, the other two regions did not participate in the instructor
 program.  Under the instructor program the Respondent continues to be
 responsible for salary, leave administration, contributions to funds for
 retirement, the insurance and health benefits, travel expenses, and
 withholding of Union dues;  however, instructors have a "supervisor" at
 the institution where they are assigned.  Individuals serve as
 instructors anywhere from three to nine months and then return to their
 position with the Respondent.
 
                          III.  Judge's Decision
 
    The Judge found that the Respondent violated section 7116(a)(1) and
 (5), concluding that, while the instructor positions were outside the
 bagaining unit, the Union had the right to bargain on behalf of unit
 employees as to procedures used to implement the instructor program and
 the impact upon adversely affected unit employees.  Further, the Judge
 found that the impact of the implemented change (the instructor program)
 was more than de minimis, noting the poetential impact on employees
 selected and possible workload impact on other employees.  Finally, the
 Judge rejected the contention that a duty to bargain existed concerning
 the conditions of employment of unit employees while they were serving
 as instructors.
 
                              IV.  Exceptions
 
    The Respondent argues that no duty to bargain exists with respect to
 matters which apply to an employee who is on detail to a non-bargaining
 unit position.  The Respondent also excepts to the Judge's conclusions
 regarding impact, particularly those concerning the possible impact on
 the workload of other employees and the impact on selectees when they
 return.  Finally, Respondent excepts to the Judge's statement that the
 parties' negotiated agreement might cover employees while detailed to
 serve as instructors.
 
                               V.  Analysis
 
    We find in agreement with the Judge, that the Respondent was
 obligated to give the Union prior notice and an opportunity to negotiate
 over the impact and implementation of the instructor program and that
 its failure to do so violated section 7116(a)(1) and (5).  The
 Respondent's exception alleging an absence of a duty to bargain with
 respect to matters which apply to employees while on detail to
 nonbargaining unit positions is inapposite:  the Judge did not find that
 the duty to bargain extended to matters concerning the employees while
 on detail to such positions.  Rather, she found that the obligation to
 bargain was limited to the impact and implementation of the instructor
 program as it affected the bargaining unit and bargaining unit
 employees.
 
    With respect to the Respondent's contention that any change in
 conditions of employment was de minimis, we agree with the Judge that
 implementation of the instructor program resulted in a change in
 conditions of employment having an impact or a reasonably foreseeable
 impact on bargaining unit employees which gave rise to a duty to
 bargain.  The Authority recently has reassessed and modified the de
 minimis standard previously used to identify changes in conditions of
 employment which require bargaining.  Under the revised standard, we
 place principal emphasis on such general areas of consideration as the
 nature and extent of the effect or reasonably foreseeable effect of the
 change on conditions of employment of bargaining unit employees.
 Department of Health and Human Services, Social security Administration,
 24 FLRA No. 42 (1986).
 
    In this case we note that the instructor program was a continuing one
 implemented and available to unit employees in five of the Respondent's
 seven regions.  While generally deemed by all to be beneficial to the
 ccareer of employees selected for participation, it had the effect of
 removing those employees from their work with the Respondent for three
 to nine months.  Given the extended nature of such absences we find it
 reasonable to conclude that the program could have a foreseeable impact
 on the workload of remaining employees as well as on the selected
 employees' ability to perform their duties upon return to their
 bargaining unit positions.  Additionally, inasmuch as the record reveals
 that selection for participation in the instructor program was
 consisdered by employees, in general, to be desirable and career
 enhancing, a conclusion that actions related to such selection could
 have a foreseeable impact on bargaining unit employees is reasonable.
 
    We find that the Judge's conclusion that it was "reasonably
 foreseeable" that implementation of the instructor program would have an
 impact on bargaining unit employees the nature and extent of which would
 require bargaining is supportable.  We reject the Agency's argument to
 the contrary.
 
    Finally, we find it unncecessary to pass upon the Agency's exception
 to the Judge's statements regarding the applicability of the parties'
 negotiated agreement.  A determination of the extent to which the
 negotiated agreement may be applicable is not necessary to conclude that
 the Respondent's actions in implementing the instructor program violated
 section 7116(a)(1) and (5) of the Statute.  Moreover, the Judge did not
 rely on any provisions of the negotiated agreement to support her
 conclusions that the Respondent had violated the Statute.
 
                              VI.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, we have reviewed the rulings of the
 Judge made at the hearing, find that no prejudicial error was committed,
 and affirm those rulings.  We have considered the Judge's Decision and
 the entire record, and adopt the Judge's findings, conclusions and
 recommended Order only to the extent that they are consistent with our
 decision.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations and section
 7118 of the Federal Labor Management Relations Statute, it is hereby
 ordered that the Internal Revenue Service shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to give notice to the National
       Treasury Employees Union, and affording it an opportunity to
       bargain, to the extent consonant with law, before implementing any
       program that adversely affects any employees for whom it is the
       exclusive representative.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Federal Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Notify the National Treasury Employees Union of the
       proposed implementation of any program that adversely affects
       employees for whom it is the exclusive representative and, prior
       to implementation of any such program, afford the Union an
       opportunity to bargain concerning it, to the extent consonant with
       law.
 
          (b) Bargain, upon request, with the Union over procedures which
       management will use in implementing the Program entitled
       "Instructor Opportunities with Historically Black Colleges and
       Universities" and appropriate arrangements for employees it
       represents and who are adversely affected by the program.
 
          (c) Post in every region where it implemented the program
       entitled "Instructor Opportunities with Historically Black
       Colleges and Universities" copies of the attached Notice to All
       Employees on forms to be furnished by the Regional Director,
       Region III of the Federal Labor Relations Authority.  Upon receipt
       of such forms they shall be signed by the Regional Commissioner
       and shall be posted and maintained for sixty (60) consecutive days
       thereafter, in conspicuous places, including all bulletin boards
       and other places where notices to employees are customarily
       posted.  The Regional Commissioner shall take all reasonable steps
       to insure that such notices are not altered, defaced, or covered
       by any other material.
 
          (d) Pursuant to 5 CFR section 2423.30, notify the Regional
       Director, Region III, in writing, within 30 days of the date of
       this Order as to what steps have been taken to comply herewith.
 
    Issued, Washington, D.C. December 31, 1986.
 
                                       /s/ Jerry L. Calhoun
                                       Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Member
                                       /s/ Jean McKee
                                       Jean McKee, 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 or refuse to give notice to the National Treasury
 Employees Union and afford it an opportunity to bargain, to the extent
 consonant with law, before implementing any program that adversely
 effects any employees for whom it is the exclusive representative.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce any of our employees in the exercise of their rights assured
 by the Federal Service Labor-Management Relations Statute.
 
    WE WILL notify the National Treasury Employees Union of the proposed
 implementation of any program that adversely affects employees for whom
 it is the exclusive representative and, prior to implementation of any
 such program, afford the Union an opportunity to bargain concerning it,
 to the extent consonant with law.
 
    WE WILL bargain, upon request, with the National Treasury Employees
 Union, over procedures which management will use in implementing the
 program entitled "Instructor Opportunities with Historically Black
 Colleges and Universities" and appropriate arrangements for employees it
 represents and who are adversely affected by the program.
                                       . . . (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 of the Federal Labor Relations Authority, Region III, whose
 address is:  1111 18th Street, NW., Room 700, P.O. Box 33758,
 Washington, D.C. 20033-0758, and whose telephone number is :  (202)
 653-8500.
 
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 3-CA-40436
 
    INTERNAL REVENUE SERVICE
         Respondent
 
                                    and
 
    NATIONAL TREASURY EMPLOYEES UNION
         Charging Party/Union
 
    Nancy J. Crawford,
    For the Respondent
 
    Patricia Eanet Dratch,
    For the General Counsel
    Federal Labor Relations Authority
 
    Before:  ISABELLE R. CAPPELLO
    Administrative Law Judge
 
                                 DECISION
 
    This is a proceeding under Title VII of the Civil Service Reform Act
 of 1978, Pub. L. No. 95-454, 92 Stat. 1191, 5 U.S.C. 7101 et seq.
 (1982), commonly known as the Federal Service Labor-Management Relations
 Statute, and hereinafter referred to as the Statute, and the rules and
 regulations issued thereunder and published at 5 CFR 2411 et seq.
 
    Pursuant to a charge of unfair labor practices filed on June 8, 1984,
 by the Charging Party (also referred to as NTEU or the Union), the
 Regional Director of Region III of the Federal Labor Relations Authority
 (hereinafter, the Authority) investigated and, on July 25, served the
 complaint initiating this proceeding.
 
    The complaint alleges that Respondent implemented a program affecting
 bargaining unit employees "without providing the Union prior notice and
 an opportunity to negotiate over the impact and implementation of this
 change in bargaining unit employees' working conditions" (G.C. Exh.
 1(c), para. 7).  /1/ The program is entitled "Instructor Opportunities
 with Historically Black Colleges" (hereinafter referred to as the
 Program).  The complaint alleges that this unilateral implementation
 violated sections 7116(a)(1) and (5) of the Statute.  /2/
 
    Respondent admits that it implemented the Program, in or about March
 1984, but denies that this program "affected a change in bargaining unit
 employees' working conditions, affected bargaining unit employees or
 required notice to negotiate over impact and implementation" (G.C. Exh.
 1(e), para. 7).  Respondent denies violating the Statute.
 
    A hearing was held on October 23, 1984 in Washington, D.C.  The
 parties appeared, adduced documentary evidence, and examined witnesses.
 Briefs were filed by the General Counsel, on November 21, and by the
 Respondent on November 23.  Based upon the record made in this case, my
 observation of the demeanor of the witnesses, and the briefs, I enter
 the following findings of fact and conclusions of law and recommend the
 entry of the following order.
 
                             Findings of Fact
 
    1.  At all times material herein, the Union is and has been a labor
 organization and Respondent, an agency, within the meaning of sections
 7103(a)(4) and (3), respectively, of the Statute.
 
    2.  At all times material herein, the Union has been certified "as
 the exclusive representative of all professional and nonprofessional
 employees of Internal Revenue Service, district, region and National
 Office, excluding professional employees of the North Atlantic Regional
 Office, management officials, supervisors, confidential employees, all
 employees of the Criminal Investigation Division, all employees engaged
 in Federal Personnel work in other than clerical capacity, and guards."
 See Jt. Exh. 1.
 
    3.  At all times material herein, the following persons occupied the
 positions set opposite their names and have been and are supervisors or
 management officials, within the meaning of sections 7103(10) and (11)
 of the Statute, and agents of Respondent also referred to herein as IRS:
 
          Paul D. Howland -- Acting Chief, Labor Relations Branch,
       Washington, D.C.
 
          Arleen Lopes -- Labor Relations Specialist, Washington, D.C.
 
          Jean Henry -- Central Region Coordinator of Historically Black
       Colleges and Universities
 
    4.  Peter Stehmer, a Tax Administration Advisor for IRS, was
 assigned, approximately one and one-half years ago, as National
 Coordinator for the Historically Black Colleges and Universitites (HBCU)
 faculty support initiative through the Tax Administration Advisory
 Services (TAAS).  This Program is a result of Executive Order 12320
 signed by President Reagan on September 15, 1981.  This Executive Order
 addresses increased participation by HBCU in federally sponsored
 programs.  The purpose of this Executive Order is to advance the
 development of human potential by strengthening the capacity of HBCU to
 provide education to overcome the effects of discriminatory treatment.
 The program seeks to identify, reduce and eliminate barriers which may
 have unfairly resulted in reduced participation by blacks in, and
 reduced benefits received by blacks from, federally sponsored programs,
 
    5.  The Intergovernmental Personnel Act (IPA) of 1970, Public Law
 91-648, 91st Congress, S. 11, January 5, 1971, is used to implement the
 HBCU program.  The IPA creates a contract between the educational
 institution and the IRS to provide instruction at the school.  See R.
 Exh. 3.  The IRS employee assigned to perform the instruction is not a
 party to the contract.  The IPA involves an exchange of expertise
 between government agencies and public or private institutions,
 including educational institutions.  Many aspects of IPA assignments are
 governed by regulations published by the Office of Personnel Management.
 
    Through the HBCU Executive Order, IRS can provide assistance to
 educational institutions by furnishing instructors on a nonreimbursable
 basis.  Previous assistance was reimbursable.  The purpose of the
 Program is to lend instructional assistance in tax and accounting to the
 educational institution and to afford the IRS an opportunity to recruit
 qualified students for its positions.
 
    6.  In March 1984, Mr. Stehmer and Linda Martin, Chief Problem
 Resolution Staff, met with David Goldberg, Chief, Performance Evaluation
 and Promotion Programs Section, Employment Branch, Patricia Francis,
 Chief of Affirmative Action, Equal Employment Opportunity, and Ms.
 Lopes, to discuss the development of this Program.  Ms. Lopes was there
 "to look at any potential impact on bargaining unit employees so that if
 it was appropriate to notify the union and to bargain that that would be
 done" (Tr. 92).  Ms. Lopes left the meeting to discuss the matter with
 John Rubin, a Labor Relations Specialist in the Labor Relations Branch,
 Contract Administration Section, "the resident expert on bargaining unit
 status" (Tr. 94-95).  Mr. Rubin made the judgment that the employees
 assigned by IRS as instructors at a HBCU would not be in the bargaining
 unit.  He made his judgment on the basis of being given "a broad
 description of the program, a broad description of the instructor
 position" (Tr. 81), "(j)ust the broad facts of the program, of our
 employees volunteering to teach at historically black colleges and their
 jobs there and a little bit of the selection process in that the -- at
 least as far as she has told me that they would be selected by the
 colleges" (Tr. 82).  This Specialist did not know that IRS selected the
 employees to be interviewed by the HBCU.  He did not know that IRS
 continued to control their leave.  Nevertheless, he testified that,
 "regardless of anything," he would have come to the same conclusion
 because the IRS was not in control of the day-to-day activities of the
 employees at the HBCU (Tr. 84).
 
    7.  Not only does IRS control the leave of its employees and the
 selection process by which a list of three employees is submitted to the
 HBCU for final selection, IRS also requires the employees selected to
 report all leave taken while at the HBCU to an IRS timekeeper.  IRS and
 the HBCU enter into an agreement which sets out the employee's position
 title;  designates the employee's immediate supervisor at the HBCU;  and
 lists the courses the employee is to teach.  IRS bears all the costs of
 the assignment.  IRS continues to make salary payments and employer
 contributions to funds for retirement, life insurance and health
 benefits.  IRS reimburses selected employees for travel expenses
 incurred in connection with assignments tpo HBCU and provides them with
 travel advances.  Selected employees who are on union dues witholding
 are continued in this status while assigned to the HBCU.  Selected
 employees, while assigned to the HBCU, earn seniority at their IRS jobs
 and receive all notices of vacancies, promotions and training
 opportunities and all technical updates and digests of IRS changes.
 
    8.  The IPA provides that agency employees assigned under it are
 "(o)n detail" and "a temporary assignment" (R. Exh. 3).  Regulations
 promulgated under the IPA provide that:  "The detailed employees pay,
 allowances, privileges, rights, seniority, and other benefits are
 preserved and remain in effect during the assignment" (R. Exh. 7, para.
 3.3(b) . . . . "
 
    9.  Details of Respondent's employees to HBCU run anywhere from three
 to nine months, after which the employee returns to his former IRS
 position.  IRS "does a lot of detailing" and has always treated detailed
 employees "as members of the bargaining unit." See Tr. 23.
 
    10.  After the March 1984 meeting (see finding 6, above), Mr. Stehmer
 advised the IRS regions to advertise, screen and refer employees to the
 regional HBCU participating in the Program.  The Program was implemented
 nationwide with participation by five of the seven IRS regions.  No
 notice was given to the Union.
 
    11.  The Union's Assistant Director of Negotiations, Joseph Kaplan,
 first learned of the Program in a phone call from the NYEU Chapter
 President in Indianapolis, who had seen an IRS leaflet advertising it.
 On May 8, 1984, Mr. Kaplan contacted Ms. Lopes concerning the Program.
 In that conversation Mr. Kaplan requested negotiations and was informed
 by Ms. Lopes that IRS would not negotiate with NTEU because the
 positions were not bargaining unit positions.  In that conversation Mr.
 Kaplan requested IRS return to the status quo ante and provide NTEU with
 an opportunity to negotiate.  This conversation was confirmed in a
 letter dated June 5, 1984, from Mr. Kaplan to Paul D. Howland.  In a
 letter dated June 26, 1984, Mr. Howland responded to Mr. Kaplan's letter
 of June 5th.  He reiterated IRS's position that the HBCU opportunities
 were non-bargaining unit positions and that IRS had no obligation to
 negotiate with the Union over the instructor opportunities.  IRS did
 indicate a willingness to "discuss" with the Union any "concerns"
 involving the Program and "to the extent (it could), give them due
 consideration." See Jt. Exh. 4).  The Union subsequently filed the
 charge leading to this proceeding.
 
    12.  In two of IRS's seven regions, there were no HBCU with
 accounting curricula;  and so those two did not participate in the
 Program.  In the other five, IRS representatives, in four, screened
 between 10 to 25 applicants, in each region, and selected 3 to be
 interviewed by the particular HBCU in that region.  The HBCU made the
 final Selection.  In one region, the Southwest Region, the HBCU "right
 up-front asked for a certain person" (Tr. 72);  and no prescreening was
 done of the applicants.  Ultimately, five bargaining unit employees were
 selected to participate in the Program out of the total of seven or
 eight IRS employees who were detailed as Instructors to a HBCU.  IRS
 criteria for selection were, at least, a masters degree or a CPA, basic
 instructor training, equal employment opportunity consciousness,
 sensitivity awareness, and "meet-and-deal qualities," to help with
 recruitment efforts (Tr. 66).  Volunteers for the Program were
 interviewed by panels of top IRS officials.  The interviews lasted 35 to
 45 minutes.
 
    13.  "(B)eneficial changes" resulted from the details to the Program
 (Tr. 69).  The Program Coordinator established that "if somebody teaches
 for, let's say, six to nine months at an HBCU, and it certainly looks
 good on your statement of accomplishment, so that would be a positive
 type factor" with "potential benefits to the person in that detail" (Tr.
 69-70).  An "assignment" to an HBCU is "attractive" to employees and IRS
 gets "many more applicants than (it) can handle" (Tr. 70).  Selection as
 an Instructor at a HBCU enhances promotional ability and demonstrates
 management's confidence in the employee's ability to perform and enhance
 the IRS's image with the public.
 
    14.  Two employees testified who had volunteered for the Program and
 not been selected by the HBCU.  Both received laudatory memoranda from
 IRS's Regional Commissioner, Central Region.  The Regional Commissioner
 thanked them for their "interest" in the Program, and encouraged them to
 continue to seek ways in which their talents could be used to further
 other special programs.  See G.C. Exh. 3 and 4.
 
    15.  The Union wished to negotiate such matters as the selection
 techniques for the teaching positions insofar as they were within the
 control of Respondent;  the announcement to employees of the opportunity
 for these positions, including what information it would contain and how
 it would be distributed;  what time period employees would have to
 apply;  the grievable rights for nonselected employees, and for selected
 employees with pending grievances or grievances while at the HBCU;  how
 leave would be handled for the selected employees, including who to ask
 for leave and the carryover;  how a reduction in force would affect
 selected employees insofar as it would concern bumping and retreat
 rights and competitive areas;  dues withholding for selected employees;
 retraining for selected employees when they return to their former
 duties;  a moratorium on the selected employees' evaluation, after their
 return and pending their becoming reacquainted with their duties, or
 just a provision that management will consider that they have been away
 on the detail when they next come up for evaluation;  timely notice to
 selected employees of promotional opportunities and an opportunity to be
 interviewed;  and access to union officers and stewards for selected
 employees, while they are at their teaching posts.  Even if the selected
 employees were found to be outside the bargaining unit, while at their
 teaching posts, the Union wished to negotiate "taking them out and
 putting them back in" (Tr. 30).
 
    16.  Ms. Lopes conceded that, upon selection of an employee to serve
 as an Instructor, "there could be additional work placed on the
 remaining employees in that office" (Tr. 100-101).
 
                        Discussion and Conclusions
 
    The General Counsel has established, by a preponderance of the
 evidence, /3/ that Respondent violated section 7116(a)(1) and (5) of the
 Statute when it implemented a program entitled "Instructor Opportunities
 with Historically Black Colleges," without providing the Union with
 prior notice and an opportunity to negotiate over the implementation
 procedures and the impact upon adversely affected, bargaining unit
 employees.
 
    1.  While unit employees selected for the Instructor position do not
 remain in the bargaining unit while actually serving at the educational
 institution, as will be discussed in part 2, below, the Union does have
 the right to bargain on their behalf, and on behalf of all unit
 employees, as to procedures used to implement the Program and the impact
 upon adversely affected unit employees, while serving in the unit.  See
 section 7106(b)(2) and (3) of the Statute /4/ and Internal Revenue
 Service, 13 FLRA 366 (1983).
 
    Impact that is actual or reasonably foreseeable, and "results in a
 more than de minimis impact," triggers the bargaining obligation.  See
 Internal Revenue Service, 16 FLRA 845, 846 (1984).  Here, the impact is
 felt by nonselected, unit employees in that their work record will not
 contain this teaching opportunity.  Respondent's Program Coordinator
 conceded that selection as an Instructor is a beneficial type of
 accomplishment with potential benefits to the detailed person;  and this
 is an understatement.  For example, Respondent's Regional Commissioner
 for the Central Region wrote laudatory memoranda to unit employees who
 volunteered and were not even selected, ultimately, by the educational
 institution.  Receiving praise from the top management official in an
 IRS region surely will enhance an employee's promotion potential.  And
 being actually selected as an Instructor would surely enhance it even
 more.  Such enhancement of promotional ability, or missing the
 opportunity for it, cannot be dismissed as a de minimis matter.  Thus,
 such matters as how the announcement of this opportunity is made, and to
 whom, and what time period the employees have to apply, are procedures
 which the Union, legitimately, wished to negotiate.  See finding 15,
 above.
 
    It is also reasonably foreseeable that the workload of unit employees
 could be increased by the absence of the selectee for a period that
 could extend for nine months.
 
    And an adverse impact is also reasonably foreseeable as to selectees
 returning to their IRS positions after an absence of as long as nine
 months.  Although a selectee returns to his or her same IRS "position,"
 there is no guarantee that the return will be to an IRS position in the
 same unit, under the same supervisor.  A selectee, after nine months,
 may need some refresher training upon return to his or her former
 position.  A reduction in force could take place during a selectee's
 absence which might have affected the selectee's bumping and retreat
 rights.  These are the types of adverse impacts which the Union might
 wish to negotiate on behalf of the selectees, upon their return from the
 educational institutions.  See finding 15, above.
 
    Taken together, these impacts cannot, fairly, be denominated as
 "trivial, insignificant, speculative, opinion, or at most, de minimis,"
 as Respondent argues.  See R. Br. 28.  Decisions of the Authority cited
 by Respondent, wherein a de minimis impact was found, are factually
 distinguishable and of little assistance in resolving the issues here.
 In Department of Health and Human Services, Social Security
 Administration, Chicago, Chicago Region, 15 FLRA No. 174, 15 FLRA 922,
 924 (1984), cited at page 21 of Respondent's brief, a change merely
 separated a review from an authorization function of Claims
 Representatives, with no effect on grade qualifications, work functions,
 or other working conditions, and did not change the way reviews were
 distributed, fraud investigations were conducted, or errors reported to
 supervisors.
 
    The decision in Office of Program Operations, Field Operations,
 Social Security Administration, San Francisco Region, 5 FLRA No. 45, 5
 FLRA 333 (1981) cited at pages 21, 26 and 28 of Respondent's brief, is
 more factually close, but still distinguishable.  In that case, one
 employee was temporarily detailed, for the three or four months;  and
 six volunteers took turns in performing his field duties, which they
 enjoyed and had previously done under an established past practice;
 their workload was not increased;  their duties were the same;  and
 their working conditions were unchanged.  Only one volunteer left the
 office on any particular day and the procedure was in effect only three
 days a week.  The work of the volunteer, on his or her day in the field,
 was diffused among 10 others and a supervisor, who took over when the
 workload in the office became heavy.
 
    In Department of Health and Human Services, Social Security
 Administration, Bureau of Field Operations, San Francisco, California,
 12 FLRA No. 30, 12 FLRA 108, 115 (1983), some 100-120 employment cases
 were transferred to one office, but they were to be worked into the
 workload, of primarily one employee, but only "as she had time," with no
 consequences for late processing.
 
    2.  It is well established that an agency has no duty to bargain as
 to employees or positions outside the bargaining unit.  See American
 Federation of Government Employees, National Council of Social Security
 Administration, Field Operations Locals, AFL-CIO (hereinafter, AFGE), 17
 FLRA 11, 12 (1985), wherein the Authority held that union proposals were
 nonnegotiable because they concerned agency employees while they were
 detailed to agency Depot Collections Centers;  and it was unrefuted that
 the Union did not hold exclusive recognition for employees so detailed.
 
    Here, of course, the Union does refute management's allegation that
 the selectees are outside the bargaining unit.  Looking at the
 collective bargaining agreement between the parties, it is seen that it
 simply states coverage for "all professional and nonprofessional
 employees of Internal Revenue Service . . . . " See finding 2, above.
 Respondent concedes that the selectees for the Instructor positions
 remain "employees of Internal Revenue Service." See R. Br. 11, 16 and
 18.  Thus, the contract itself appears to be sufficiently broad to cover
 the selectees while on duty at the educational institutions;  and I note
 that Respondent feels unsure enough of its contrary position that it
 continues dues-withholding of union members while detailed to the
 educational institutions.  See finding 7, above.  Respondent relies on
 Article 7 of the contract to support its position.  But this Article,
 dealing with "Promotions/Other Competitive Actions" also seems
 sufficiently broad to cover these details, in that it covers "all
 competitive promotions to bargaining unit positions and certain other
 placement actions as set forth in Section 2," (Jt. Exh. 1, Section 1,
 page 5, emphasis added).  Section 2 of Article 7 sets forth specific,
 placement actions to which the Article does not apply and then states it
 will apply "to all other placement actions" (Jt. Exh. 1, Section 2B,
 page 5).  Placement in an educational institution is not specifically
 excluded.  And the manner in which IRS screened the applicants for the
 Instructor positions certainly sounds "competitive" enough to qualify as
 an Article 7 placement.  See finding 12, above.
 
    However, Respondent also relies upon language in the Statute itself
 and, particularly, section 7103(a)(2)(A) which defines an "employee" as
 "an individual employed in an agency;" section 7103(a)(3) which defines
 an "agency" as "an Executive Agency;" section 7103(a)(12) which defines
 the "collective bargaining" which a union may undertake on behalf of
 employees as applying to "employees in an appropriate unit in the
 agency" and "with respect to the conditions of employment affecting such
 employees;" and section 7106(a)(14) which defines "conditions of
 employment" as meaning "personnel policies, practices, and matters,
 whether established by rule, regulation, or otherwise, affecting working
 conditions."
 
    While not free from doubt, I believe that Respondent is probably
 correct in arguing that the Statute was not intended to apply to IRS
 employees while they are employed in educational institutions and come
 under the control of those institutions, insofar as their day-to-day
 activities are concerned.  During these prolonged details, many of the
 conditions of employment about which the Union might wish to bargain are
 not within the control of IRS, for example, changes in office
 facilities, parking and cafeteria privileges, hours of work, number and
 size of classes, and deadlines on grading papers.  Since IRS employees
 selected as Instructors include nonbargaining unit employees (see
 finding 12, above), any Union proposals potentially affecting these
 nonbargaining unit employees would be outside the duty to bargain by
 IRS.  See AFGE, above and International Federation of Professional and
 Technical Employees, AFL-CIO, NASA Headquarters Professional
 Association, 8 FLRA 212, 215 (1982).  The impracticality of the Union's
 being thus able, effectively, to represent the Instructors while on
 these details is persuasive that Congress did not intend for the
 Statute's reach to extend to such situations, and that the statutory
 language limiting coverage to employees "employed in an agency" should
 be construed literally.
 
                        Ultimate Findings and Order
 
    Respondent has violated section 7116(a)(1) and (5) of the Statute, as
 alleged in the complaint.
 
    Accordingly, and pursuant to 5 U.S.C. 7118 and 5 C.F.R. 2423.29, the
 Authority hereby orders that the Internal Revenue Service shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to give notice to the National
       Treasury Employees Union, and affording it an opportunity to
       bargain, to the extent consonant with law, before implementing any
       program that adversely affects any employees for whom it is the
       exclusive representative.
 
          (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 Statute:
 
          (a) Notify the National Treasury Employees Union of the
       proposed implementation of any program that adversely affects
       employees for whom it is the exclusive representation and, prior
       to implementation of any such program, afford the Union an
       opportunity to bargain concerning it, to the extent consonant with
       law.
 
          (b) Bargain, upon request, with the Union over procedures which
       management will use in implementing the Program entitled
       "Instructor Opportunities with Historically Black Colleges" and
       appropriate arrangements for employees it represents and who are
       adversely affected by the Program.
 
          (c) Post in every region where it implemented the Program
       entitled "Instructor Opportunities with Historically Black
       Colleges" copies of the attached Notice to All Employees on forms
       to be furnished by the Regional Director, Region III of the
       Federal Labor Relations Authority.  Upon receipt of such forms
       they shall be signed by the Regional Commissioner and shall be
       posted and maintained by him or her for sixty (60) consecutive
       days thereafter, in conspicuous places, including all bulletin
       boards and other places where notices to employees are customarily
       posted.  The Regional Commissioner shall take all reasonable steps
       to insure that such notice are not altered, defaced, or covered by
       other material.
 
          (d) Pursuant to 5 CFR 2423.30, notify the Regional Director,
       Region III, in writing within 30 days from the date of this Order
       as to what steps have been taken to comply herewith.
 
                                       /s/ Isabelle R. Cappello
                                       ISABELLE R. CAPPELLO
                                       Administrative Law Judge
 
    Dated:  April 12, 1985
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) "G.C. Exh." refers to the exhibits of the General Counsel.  Other
 abbreviations used herein are as follows.  "Tr." refers to the
 transcsript.  "Jt. Exh." refers to joint exhibits.  "R. Exh." refers to
 the Respondent's exhibits.  "G.C. Br." refers to the brief of the
 General Counsel and "R. Br." to that of Respondent.  Corrections to the
 transcript are made pursuant to 5 CFR 2423.19(r) and are attached to
 this decision.
 
    (2) 5 U.S.C. 7116(a)(1) and (5) provide as follows:
 
          (a) For the purposes of this chapter, it shall be an unfair
       labor practice for an agency --
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;  . . .
       (or)
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter . . . .
 
    (3) This is the statutory burden of proof.  See 5 U.S.C. 7118(a)(7)
 and (8).
 
    (4) Section 7106 provides in pertinent part, that:
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from negotiating -- . . .
 
               .     .     .
 
 
          (2) procedures which management officials of the agency will
       observe in exercising any authority under this section;  or
 
          (3) appropriate arrangements for employees adversely affected
       by the exercise of any authority under this section by such
       management officials.
 
 
 
 
 
 
 
                          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 fail or refuse to give notice to the National Treasury
 Employees Union and afford it an opportunity to bargain, to the extent
 consonant with law, before implementing any program that adversely
 affects any employees for whom it is the exclusive representative.
 
    WE WILLL NOT in any like or related manner, interfere with, restrain,
 or coerce any of our employees in the exercise of their rights assured
 by the Federal Service Labor-Management Relations Statute.
 
    WE WILL notify the National Treasury Employees Union of the proposed
 implementation of any program that adversely affects employees for whom
 it is the exclusive representation and, prior to implementation of any
 such program, afford the Union an opportunity to bargain concerning it,
 to the extent consonant with law.
 
    WE WILL bargain, upon request, with the National Treasury Employees
 Union, over procedures which management will use in implementing the
 Program entitled "Instructor Opportunities with Historically Black
 Colleges" and appropriate arrangements for employees it represents and
 who are adversely affected by the Program.
                                       . . . (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 c