DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE WASHINGTON, D.C. and NATIONAL TREASURY EMPLOYEES UNION
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
Case No. 04 FSIP 35
DECISION AND ORDER
The Department of the Treasury, Internal Revenue Service, Washington, D.C. (Employer or IRS) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the National Treasury Employees Union (Union or NTEU).
After investigation of the request for assistance, which involves the impact and implementation of the IRS’s decision to conduct a reduction in force (RIF) in its Agency Wide Shared Services (AWSS) Headquarters and Field Sites Mailrooms,/ the Panel determined that the impasse should be resolved through single written submissions from the parties. After considering the entire record, the Panel would take whatever action it deems appropriate to resolve the matter, which may include the issuance of a Decision and Order. The parties also were informed that, in resolving the disputed issues, the Panel would select between the parties’ final offers on a package basis, to the extent they otherwise appear to be legal. Written statements were submitted by the parties consistent with the Panel’s determination, and the Panel has now considered the entire record.
The Employer’s mission is to fairly enforce tax laws, respect taxpayer rights, collect taxes and help educate the taxpayer. The Union represents a bargaining unit of approximately 90,000 professional and non-professional employees stationed nationwide at the Headquarters Office, Service Centers and Regional Offices. The parties are covered by a National Agreement (NA) that went into effect on July 1, 2002, for a 4-year term ending June 30, 2006.
The parties disagree over numerous RIF-related issues, as described more fully below.
THE PARTIES’ POSITIONS
1. The Union’s Position
The Union proposes that: (1) the Agreement apply to all RIFs during the duration of the parties’ NA “once they implement a revised contract flowing from the current re-opener specified in Article 54, Section 4”; (2) a permanent “umpire” be permitted to recommend “adjustments” to the Agreement in any disputes between the parties over its interpretation concerning all other RIFs over which negotiations occur prior to implementation of the revised term NA referenced above, and that the umpire’s recommendations may be used by either party in any dispute that comes to the Panel arising from such negotiations; (3) the Agreement apply to both RIFs and transfers of function; (4) the circumstances that trigger notice to the Union of a RIF be consistent with FLRA case law, i.e., the RIF “will” be necessary, as opposed to contingent on certain conditions, and sufficient details are finalized so the Agreement can be applied; (5) the Union be provided with all pertinent data at the time of the initial RIF notice; (6) there be a meeting between the national Union president and management during the 30 days prior to the date that notification of a RIF is given to the Union “to clarify what is proposed and the underlying data, explore alternatives,” and “discuss opportunities for joint action in the ensuing RIF”; either party could initiate bargaining by proposing changes in conditions of employment over any matters not covered by the Agreement; (7) the Employer provide the Union with a written explanation of why it is unable to modify the RIF plan to avoid demonstrated illegal discrimination against protected parties; (8) the Employer’s ability to conduct “pre-RIF activities” be contingent on providing eligible employees Career Transition Assistance Program (CTAP) notices 6 months in advance of the RIF, and the full exercise of Voluntary Early Retirement Authority (VERA)/Voluntary Separation Incentive Pay (VSIP) authority beginning the 15th day of the 30-day notice period provided to the Union; (9) a detailed process for employee verification of official personnel records be implemented; (10) employees potentially affected by the RIF be provided an opportunity to move into other positions continuing in the IRS; (11) employees in any jobs being studied for reorganization or contracting out be eligible and given top priority to use training funds from the Agency’s Human Resources Investment Fund (HRIF); (12) within 30 days of the Union RIF notice, a joint committee be established to oversee in-and-outplacement training issues and VERA/VSIP implementation; (13) two Union representatives from each chapter be given 8 hours of face-to-face training on “RIF procedures and pre-RIF mechanics,” and another 4 hours devoted to a “joint explanation of this Agreement”; (14) the Employer waive qualifications for employees to compete for positions, to the extent permitted by regulations; (15) RIF procedures be implemented giving employees at least 120 calendar days’ notice of a RIF where they have not otherwise had CTAP notices for at least 60 days prior to the RIF notice; the Employer hold a formal meeting with employees on the day RIF notices are issued; and employees be given a reasonable amount of official time, normally 4 hours per pay period, to search for other positions inside and outside of the IRS; (16) the Employer annually be required to disclose to the Union “the costs of doing the work if it was contracted out and compare it to the extent possible to the various costs” incurred to do the work prior to the RIF; (17) the Union be permitted to reopen negotiations with the Employer if management decides to offer non-unit employees affected by the RIF “benefits and procedures more generous than those outlined here”; (18) either party be permitted to reopen the Agreement if there is a change in RIF regulations which has an impact on the negotiability of RIF issues, or amounts to a substantial change of procedures or rights; (19) employees selected for positions pursuant to the Agreement or any RIF-related regulations be given moving expenses to the maximum extent provided by law; (20) the parties appoint a permanent RIF umpire for purposes of settling disputes under the Agreement as well as “any RIF issues not expressly covered within the content of this Agreement”; and (21) employees be given complete copies of their IRS files relating to their medical, personnel and discipline records 48 hours before they “leave the rolls.”
Its proposed package provides a “reasonable approach to the administration” of a RIF that assists employees in finding other employment or leaving the rolls “while allowing the IRS to proceed with its planned RIF on a fast track.” By adopting it, the Panel would reduce the amount of resources spent negotiating over any other RIFs the Employer proposes to conduct during the remaining term of the parties’ NA. The savings could be substantial, given that the Employer has announced its intention to conduct 13 RIFs, in addition to the RIF in the mailroom function, over the next 18 months. Its proposal for a permanent umpire could expedite the resolution of disputes between the parties over the meaning of the current Agreement, while preserving the Panel’s role in resolving any bargaining impasses that arise over any matters that the Agreement does not cover. Application of the Agreement to RIFs and transfers of function in other ongoing RIF negotiations (other than the RIF in the mailroom function) would eliminate a frequent source of disagreement between the parties. The wording in its package that would trigger the Union’s RIF notification only when all conditions for conducting the RIF are finalized would ensure that the Union’s bargaining rights, as found by the FLRA in previous RIF cases, are fully preserved. Providing the Union with all data pertinent to the RIF with the initial Union RIF notice would give it the maximum amount of time to assist employees who would be adversely affected in finding new jobs, and to point out the Agency’s potential liabilities in failing to conform to EEO guidelines that apply to selection procedures that are used as the basis for any employment decision.
The requirement for a meeting with the NTEU national president after initial Union notice would permit collaborative efforts to mitigate the RIF, and is consistent with the parties’ current practice whereby a briefing is held for the Union after receipt of the RIF notice. Moreover, restricting the subjects over which supplemental bargaining over subsequent RIFs would be required to matters not covered by the Agreement is an improvement over the current “more expansive agreement,” which “allows supplemental bargaining over any issue related to the RIF.” Its proposal would also create an incentive for the Employer to offer employees direct and indirect early outs and buy outs, and 6 full months under the CTAP, thereby minimizing the RIF’s impact, by tying management’s ability to conduct necessary pre-RIF activities to such actions. Furthermore, ensuring that employees have a reasonable amount of time to validate employment information that is the basis of retention registers and employees’ bump and retreat rights is in the interests of both parties. A freeze on existing vacancies and the waiving of qualification requirements by the Employer would give employees a greater opportunity to find positions within the IRS. Providing employees affected by reorganizations and contracting out priority access to the Agency’s HRIF would guarantee they receive adequate training funds to qualify them for positions in the IRS, and formation of a Joint Implementation Committee would permit the troubleshooting of training and outplacement issues more quickly than traditional bargaining.
The training of Chapter officials on RIF procedures and issues is necessary because of their lack of experience in this area, given that the RIF in the mailroom function is only the second one in the history of the IRS, and would be economical because of the large number of additional RIFs the Employer has announced it is going to conduct. The wording in its package requiring the Employer to provide employees with individual RIF notices of at least 120 days unless they have received the benefits of CTAP for at least 60 days, and immediate access to job search tools, is warranted so those affected can have sufficient time to find jobs both inside and outside the IRS, and get off the rolls more quickly. Mandating that the Employer assess and report the savings it has achieved because of its RIFs would maintain accountability to “employees, the Union, and taxpayers.” It is also reasonable to require bargaining unit and non-bargaining unit employees experiencing the same RIF to be treated equitably. In this regard, the Employer has provided non-bargaining unit employees with moving expenses as an incentive to relocate outside their commuting areas, and the same benefit should be offered to bargaining unit employees who find IRS jobs in other geographical areas. In addition, permitting the parties to re-open negotiations if there are subsequent changes in RIF laws and regulations protects both their interests. The use of a permanent umpire is warranted to address disagreements expeditiously, and because the Union has offered to waive its right to bargain individually over any future RIFs. Employees who lose their jobs with IRS should be given a complete copy of their employment records to expedite job searches with prospective employers.
Finally, the Employer’s final package does little more than meet minimum requirements under applicable RIF regulations, and does not exercise management’s discretion to assist employees adversely affected by the RIF in such areas as moving expenses, training, waiver of qualification requirements, and current internal vacancies. Some examples of its inadequacies are its failure to: (1) offer “indirect” buyouts that could create vacancies for employees who want to remain with the IRS; (2) freeze vacancies within the Agency until all employees affected by the RIF have an opportunity to be considered; and (3) ensure that the RIF complies with EEO Guidelines on Employee Selection, which is crucial, given that the mailroom RIF will have a major impact on employees with disabilities, a class specifically protected from illegal discrimination.
2. The Employer’s Position
Basically, the Employer would: (1) offer VERA and VSIP to all eligible employees; (2) allow a period prior to the RIF for employees to update their personnel records; (3) apply various requirements established in the current Government-wide RIF regulations to assist affected employees in finding another job (e.g., CTAP, the Interagency Career Transition Assistance Program (ICTAP), and the Department of the Treasury’s Reemployment Priority List (RPL)); (4) establish local commuting areas as the competitive areas within which employees’ “bump and retreat” rights apply, and competitive levels, retention registers, and credit for performance in accordance with applicable Government-wide RIF regulations; (5) release employees from competitive levels, and make exceptions to the normal release order, in accordance with applicable Government-wide RIF regulations; (6) issue specific RIF notices 60 days prior to the RIF effective date; (7) permit employees and the Union to inspect the Agency’s retention registers and related records, subject to the provisions of the Privacy Act and other applicable laws and regulations; (8) provide special assistance to affected employees with disabilities; (9) offer certain additional benefits for affected employees, e.g., obtaining information on state unemployment insurance, and assisting them in seeking waivers from OPM requirements concerning the continuation of health insurance coverage; and (10) distribute to affected employees copies of the parties’ Agreement, the Federal RIF regulations, and a glossary of terms related to and used in the RIF, and provide affected employees a detailed supplemental briefing after the window for VERA and VSIP has closed explaining the Agreement, RIF procedures, benefits, CTAP, and ICTAP.
Its final package should be adopted by the Panel because it is “comprehensive, reasonable and fair.” Among other things, the Employer would offer early outs and buy outs to mailroom employees to the extent OPM approves its ability to do so, and permit employees one more chance to verify their RIF-related information before retention registers are finalized. The proposal also provides another briefing for employees concerning the final RIF Agreement, RIF procedures, employee benefits, the IRS’s CTAP, and the OPM’s ICTAP, to supplement the comprehensive briefing regarding these matters that mailroom employees have already received. In accordance with Article 8 of the parties’ NA, the Union would be permitted to address employees for 30 minutes at the conclusion of the supplemental briefing, without managers present. The package applies the parties’ previously negotiated CTAP article (Article 51 of the NA) to employees affected by the RIF, and promises the issuance of certificates of expected separation (CES), if time permits, not more than 6 months prior to the effective date of the RIF, so that employees may take advantage of the CTAP as early as possible and for as long as possible.
Consistent with applicable Government-wide regulations, employees would be given specific RIF notices 60 days in advance of the RIF effective date so management’s goal of separating employees by December 1, 2004, is attained. The RIF process itself would be conducted in accordance with applicable Government-wide regulations, whose steps are identified in the final package, and the RIF regulations would be appended to the parties’ final RIF Agreement for employees’ review. Moreover, special assistance would be provided to disabled employees regarding the internal job application process, counseling, information with regard to state rehabilitation services, and notification of other local Federal agencies of the Employer’s potential pool of qualified applicants with disabilities. Overall, in conjunction with the contractor’s willingness to hire those that wish to work for it, the disabled mailroom employees would receive sufficient resources and assistance to find jobs before and after the RIF.
The Union’s final offer, on the other hand, is “completely outside the parameters of and not responsive to the current impasse and the Panel has no jurisdiction to consider it.” In this regard, it addresses the subject of a comprehensive RIF and Transfer of Function Agreement which would eliminate the need to bargain over future RIFs. The parties have never negotiated over such a comprehensive agreement, and the Panel never asserted jurisdiction over the matter./ Because the remaining sections of the Union’s final offer “cannot be meaningfully severed” from this portion of its package, and would be rendered “unreasonable and nonsensical given the current status of the mailroom RIF impasse,” the Panel should resist such an approach. In addition, various articles in the parties’ NA already cover the Union’s notice, information, and CTAP proposals, so the Employer is under no obligation to negotiate these subjects again. On the merits of the Union’s package, contrary to its belief, the Employer has not received OPM’s authorization to offer indirect buy outs to employees whose departures would create placement opportunities for mailroom employees. Therefore, it would be unable to conduct the sorts of pre-RIF activities the final package permits only on the condition that indirect buy outs are offered first. Finally, the Union’s proposed wording on face-to-face RIF training would require the expenditure of resources to train 209 Union representatives, many from Chapters unaffected by the mailroom RIF, before the Employer could continue with the RIF process. Given that the current RIF is expected to affect only about 51 mailroom employees, the Union’s proposal is “clearly excessive.”
Having carefully considered the Employer’s jurisdictional contention that the Union’s final offer contains wording over which the parties never negotiated or reached impasse, we conclude that the Panel is without authority to consider it on its merits. Accordingly, we shall order the adoption of the Employer’s final offer to resolve the parties’ dispute.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:
The parties shall adopt the Employer’s final offer.
By direction of the Panel.
/ The latest estimate provided by the Employer is that 51 employees, 18 of whom suffer from “self-identified disabilities,” in 23 locations, will be directly affected by the RIF. The Employer also states that the contractor who will take over the performance of the mailroom functions once the RIF is implemented is willing to hire all the disabled mailroom employees who wish to work for it and, if legally permitted, all of the non-disabled mailroom employees.
/ The Employer cites a decision by the Court of Appeals for the District of Columbia Circuit, Patent Office Professional Association v. Federal Labor Relations Authority, 26 F.3d 1148 (D.C. Cir. 1994) in support of its position that the Panel lacks jurisdiction to award the Union’s final package in the current circumstances.