DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE WASHINGTON, D.C. and NATIONAL TREASURY EMPLOYEES UNION

In the Matter of

DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

WASHINGTON, D.C.

and

NATIONAL TREASURY EMPLOYEES UNION

Case No. 97 FSIP 31

 

ARBITRATOR’S OPINION AND DECISION

    The Department of the Treasury, Internal Revenue Service, Washington, D.C. (IRS, Employer, or Agency) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse between it and the National Treasury Employees Union (NTEU or Union) under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119. After investigation of the request for assistance, which involves mid-term negotiations over the Employer’s decision to conduct a reduction in force (RIF), the Panel directed the parties to resume negotiations, on a concentrated schedule, over all remaining issues in dispute, with the assistance of the Federal Mediation and Conciliation Service (FMCS). If a complete settlement was not reached, at FMCS direction, the parties were to provide the FMCS with their final offers, and the FMCS would transmit such offers to the Panel by close of business on March 21, 1997. The parties were also informed that if final offers were transmitted to the Panel by the FMCS, it would use a procedure to resolve the impasse which requires selection from among them on an issue-by-issue basis, insofar as the proposals are otherwise legal.

    The parties were unable to resolve the dispute with FMCS assistance. After receiving their final offers, the Panel directed the parties to submit the dispute to the undersigned who, acting as an arbitrator, would issue a binding decision on all outstanding issues. Consistent with the Panel’s previous procedural determination in this dispute, the Panel also stated that my authority would be limited to selecting from among the parties’ final offers on an issue-by-issue basis, insofar as the proposals are otherwise legal.(1)

    On July 10, 1997, representatives of the parties convened before me for an arbitration hearing at the Panel’s offices in Washington, D.C. Prior to the hearing, the parties were permitted to submit statements of position regarding the nonnegotiability of proposals contained in each side’s final offer and pre-hearing briefs of no more than 2 pages (excluding attachments) on each of the issues at impasse.(2) During the hearing, the parties were afforded the opportunity to present their respective final offers, offer testimony, cross-examine witnesses, and submit additional documentary evidence for the record. After the hearing, post-hearing briefs were submitted.(3) The record is now closed and I have considered all of the relevant information contained therein.(4)

BACKGROUND

    The Employer’s mission is to administer and enforce the internal revenue laws and related statutes. The Union represents a nationwide consolidated bargaining unit of approximately 98,000 professional and nonprofessional employees. About half of these employees work either in the Employer’s National, 4 Regional, or 33 District Offices; employees in these offices are most likely to be affected by the RIF; they are covered by a master agreement referred to by the parties as NORD IV, which is due to expire on June 30, 1998. The other bargaining-unit employees unaffected by the RIF work primarily in IRS Service and Data Processing Centers, and are covered by a master agreement referred to as NCA IV, which is also due to expire on June 30, 1998.

ISSUES AT IMPASSE

    The parties disagree over 56 issues covering a wide variety of subjects related to the Employer’s proposed RIF.(5)

1. ISSUE #1 (Union § 1 A; Employer Introduction § A)

Union Statement of the Issue:

Will the terms and language of this agreement apply to only the specific RIF that IRS has announced to NTEU to trigger these midterm negotiations or shall they apply to all unannounced RIFs that IRS may wish to implement during the remaining term of the master agreement?

Employer Statement of the Issue:

Will this agreement apply to all RIF’s implemented during the term of the Parties master agreement or only the specific RIF NTEU claims triggered these midterm negotiations?

    a. The Union’s Position

    The Union proposes the following:

This agreement applies only to the RIF of the employees occupying the positions within the competitive areas that IRS had identified in writing to NTEU prior to the submission of proposals. It applies to no other RIF and any proposal to conduct another RIF will carry with it the obligation on management to separately notify the Union and negotiate to and through impasse, if requested, absent an emergency as that term is understood in Title VII of the CSRA.

The parties’ agreement should be limited only to the specific RIF for which the Union received notification in July 1996. To apply the agreement to all future RIFs until the expiration of NORD IV in June 1998 would conflict with Article 19 of NORD IV, which requires the Employer to give specific notice of any RIF, and is also inconsistent with the "tradition of the parties" when negotiating mid-term changes. The current RIF is limited to nonprofessional employees in noncontinuing offices, and does not include the majority of the bargaining unit. Thus, it would be unfair to deny the Union the right to negotiate subsequent RIFs when its proposals were more narrowly focused. NORD IV also permitted the Employer to propose an overall RIF procedure as part of its July 1996 right to reopen up to five term contract articles, but it chose to reopen other articles instead. If the Employer’s proposal is adopted, therefore, the Arbitrator would, in effect, be allowing it to reopen a sixth contract article.

    The Union’s position conforms "with a great deal of Federal Labor Relations Authority (FLRA) case law" and previous Panel decisions concerning the subject of RIFs. The Employer’s proposal, on the other hand, is outside the Union’s obligation to bargain because the law provides that when management wishes to make a midterm change a union must be provided with specific notice of the intended changes. Thus, "it is illegal and improper for IRS to insist to impasse on the language to which we object." The Employer’s opportunity to negotiate comprehensive RIF procedures occurred under the parties’ NORD IV midterm reopener clause; instead, it chose to pursue other matters, and should not be provided another chance to reopen the term agreement in the guise of negotiations over this specific RIF. Finally, although it had an opportunity to do so, the Employer presented no evidence at the hearing about why it believes the Arbitrator "should overlook the near dozen arguments the Union has raised in support of its position that the terms of the agreement be limited to the midterm RIF proposal IRS made at the outset of bargaining."

    b. The Employer’s Position

    The Employer proposes the following:

This agreement will remain in effect until the termination date of the NORD IV Agreement and will apply to any RIF conducted by the Agency from its effective date to its termination date.

Regarding the Union’s argument that the proposal is outside its statutory duty to bargain, "it confuses the notice the Agency provided to it of a midterm change pursuant to Article 47 of NORD IV with the notice provided to it under Article 19 regarding RIFs." In this regard, the current negotiations arose under Article 47, "Mid-Term Bargaining." The Employer fully informed the Union that it was negotiating "a RIF process," and for the Union to suggest otherwise is "disingenuous." The Union’s additional claim that permitting the Employer to negotiate over a general RIF process at this point would be inconsistent with the NORD IV midterm reopener provision should also be rejected. Article 19, "Reduction in Force," has "nothing to do with a RIF process" so "there was nothing within Article 19 to reopen." Finally, the Washington Regional Office of the FLRA has dismissed the Union’s unfair labor practice (ULP) charge alleging that the Agency engaged in bad faith bargaining by taking the negotiating position that the RIF Agreement would apply to all RIF actions during the term of NORD IV.

    On the merits of its proposal, while the current RIF is based on a reorganization, given its budgetary forecasts until the year 2002 and "realignment challenges," there is a "good likelihood" that the IRS "may have to conduct additional selective RIFs in the future if other voluntary methods do not sufficiently decrease the size of the workforce." Even though it has taken "extraordinary steps" to prevent the current RIF, as the history of these negotiations demonstrates, there is little reason to believe that bargaining over subsequent RIFs would result in a voluntary settlement by the parties, particularly "since a RIF is anathema to any union." Adoption of the Union’s proposal on this issue, therefore, would undoubtedly result in future requests for Panel assistance over RIF impasses between the parties, and "would not be an effective use of the parties’ or the Panel’s time and resources."

CONCLUSIONS

    The Arbitrator adopts the Union's proposal. The Employer's notice to the Union that triggered this bargaining informed of mid-term changes in working conditions represented by this specific RIF action. There was no request to bargain a general RIF agreement until later. The Employer did not avail itself of a contractually created opportunity to reopen the term agreement RIF article to negotiate a general RIF agreement even though that opportunity presented itself at nearly the same time as its notice of this RIF. The Union asserts that its proposals have been drafted with this specific RIF in mind. Other facts militating against the Employer's position include the imminence of new OPM RIF regulations which could put new rules in effect for any future RIFS, as well as expiration of the term agreement in June 1998.

2. ISSUE #2 (Union § 1 B 1)

Will the language of this agreement specifically exclude from coverage any transfer of function that IRS may conduct as part of the reorganization?

    a. The Union’s Position

    The Union proposes the following:

Furthermore, this agreement will not apply to any Transfers of Function [ToF] that IRS may wish to do in connection with the announced RIFs and reorganization. Because there is no agreement between the parties applying to a ToF, any such effort by the IRS will, as law provides, carry with it the obligation on management to separately notify the Union and negotiate to and through impasse prior to implementation, if requested, absent an emergency as that term is understood in Title VII of the CSRA. NTEU will have the right to negotiate over whether a ToF will be implemented prior to a RIF when they are involved in related reorganizations. A transfer of function is defined in regulation.

The purpose of its proposal is to make clear that the current negotiations involve only the subject of the specific RIF announced by the IRS in July 1996, and that "the Union’s right to bargain over any future transfer of function is in no way ‘covered by’ this agreement or otherwise waived." This is necessary because of developments in FLRA case law, and a recent advice memorandum issued by the General Counsel of the FLRA. Its proposed wording, therefore, would ensure its ability to "invoke negotiations" should it "uncover" a ToF in this reorganization. It would also allow the Union to benefit from the specific notice the law requires to trigger its midterm bargaining rights, rather than requiring it to address "speculatively" any and all ToFs that the Employer may be contemplating in the future.

    Turning to the Employer’s jurisdictional argument that Article 47 of NORD IV is a bar to consideration of this, and numerous other proposals in the Union’s last best offer, in response to the Arbitrator’s request that the parties present evidence on this point, "surprisingly . . . the IRS never presented any evidence to support its allegation or to otherwise give the Arbitrator cause to support its motion." In contrast, the testimony of the Union’s President, who was present when the term contract language was first written into the contract in the late 1970's, among other things, establishes that: (1) it was offered by IRS as part of management counterproposals and, therefore, any doubt as to the meaning of the clause should be resolved against the interests of the party that drafted the language; (2) it was presented by the IRS merely as a way of inserting some of the most common aspects of the "good faith bargaining" principles that had arisen in case law; and (3) it was the intent of those who drafted the language that it not bar the Union from submitting new proposals once bargaining began "as long as they were related to the issue of RIF." The Union President’s testimony is buttressed by that of its National Executive Vice President, who explained that in her role as Chair of Union mid-term bargaining teams dealing with IRS, "the parties have never interpreted or used Article 47 the way the Agency now urges it be used." In fact, evidence introduced at the hearing shows that the IRS itself, in the current mid-term bargaining, revised its earlier proposals in the very same manner that it is now contending the contract bars the Union from doing. Finally, the Employer’s jurisdictional contention "is nonsensical" because the interpretation it is based on is "antithetical" to free and open bargaining, and would force the Union in the direction of putting "every conceivable proposal" on the table at the outset to protect its primary interests.

    b. The Employer’s Position

    The Employer has no counterproposal. Preliminarily, it has no obligation to bargain over the Union’s proposal because it is "new" and, therefore, inconsistent with Article 47, Section 1, E, of NORD IV, on mid-term bargaining.(6) In this regard, NORD IV "provides that neither party may offer new proposals after the first day of negotiations unless the parties otherwise agree." The Union’s proposal, however, was presented for the first time on March 21, 1997, the day the Panel required the parties to submit their final offers to FMCS, and the Employer has not agreed to waive its rights in this regard. Despite the "confusing and indistinct testimony" of the Union President at the hearing on this point, the contract provisions "are plain and clear." In addition, the current negotiations only cover RIFs and certain pre-RIF activities, and referencing a ToF would be "superfluous" and "needlessly complicate" this RIF Agreement. Furthermore, the second to last sentence of the Union’s proposed wording could cause "unreasonable delay" if it is interpreted broadly to mean that the Union would have the right to negotiate whether a ToF in one competitive area must occur before a RIF in an unrelated competitive area. To avoid future disputes over the wording, and because the proposal "serves no useful purpose" overall, the Arbitrator should omit it from the final RIF Agreement.

CONCLUSIONS

    The Arbitrator declines to adopt the Union's proposal on the merits. The Union has not been convincing about the need for a provision that the Union says is intended to do no more than clarify that this RIF agreement does not cover transfers of function. The Employer agrees that the instant agreement covers only RIFs and pre-RIF activities. NTEU's bargaining rights as to any future management actions are established elsewhere, and there is no need to encumber this agreement with a provision of this type.

3. ISSUE #3 (Union § 1 B 2)

Union Statement of the Issue:

Will the language of this agreement specifically sever from its terms any dispute over redeployment that the parties may have?

Employer Statement of the Issue:

Will this agreement reference any continuing dispute the parties may have concerning the Redeployment Understanding?

    a. The Union’s Position

    The Union proposes the following:

The parties agree to formally sever from this dispute and agreement any continuing dispute they have over the application and termination of the redeployment agreement. Nothing in this agreement adversely impacts on any other rights the union may have to pursue disputes related to redeployment.

The reason for this proposal is essentially the same one as outlined above in connection with Issue #2: "The Union wishes to make it clear that any residual disputes and negotiations over the parties’ ‘redeployment’ agreement are not resolved by (nor ‘covered by’) this negotiation and agreement." The redeployment agreement was reached by the parties in November 1993, and was designed to avoid a RIF by encouraging employees to move into jobs that were to be continuing in nature. It included an impasse process to handle any disputes over its application. When the Employer terminated that agreement unilaterally in August 1996, there were a number of disputes that remained unresolved. Because it is arguable that this RIF Agreement replaces the redeployment agreement, the proposed wording would ensure that "those disputes continue on their own path whatever that may be, irrespective of this" RIF Agreement.

    b. The Employer’s Position

    The Employer has no counterproposal. The parties’ redeployment agreement of 1993 "did not concern or provide protections to those employees who were affected by the Agency’s reorganization and anticipated RIF." Because the redeployment agreement actually "served as an impediment" to assisting at-risk employees, in accordance with its terms, management terminated it unilaterally. It is unnecessary to complicate this RIF Agreement with references to a completely different agreement which is now "extinct," as the Union proposes. Moreover, the Employer has no obligation to negotiate over the proposal because the Union agreed in Article 47, Section 2, E, of NORD IV that any proposals offered in response to Employer-initiated changes in conditions of employment would relate to the changes proposed by the Employer, and the redeployment agreement is unrelated to the anticipated RIF. Finally, on June 19, 1997, the parties resolved the only remaining open issue under that agreement, which is another reason why it should not be mentioned in the current context.

CONCLUSIONS

    For reasons similar to those articulated with respect to Issue #2 the Arbitrator declines to adopt the Union's proposal on the merits. The pre-existing and distinct redeployment agreement referred to in the proposal is not referenced in this agreement. Any disputes between the parties about that earlier agreement are for another forum.

4. ISSUE #4 (Union § 1 C, first sentence; Employer Introduction § B)

Will the definition of a RIF be supplemented with language which would arguably require that the RIF be completed within 180 days of an unspecified date?

    a. The Union’s Position

    The Union proposes the following:

A reduction in force (RIF) is the release of a competing employee from their competitive level by furlough for more than thirty (30) calendar days, separation, demotion, or reassignment requiring displacement, when the release is required because of lack of work; shortage of funds; insufficient personnel ceiling; reorganization; the exercise of reemployment or restoration rights or reclassification of an employees’s position due to erosion of duties when such action will take effect after an agency has formally announced a RIF in the employee’s competitive area.

The only wording in dispute is the Employer’s inclusion of the phrase "and when the reduction in force will take effect within 180 days" which, admittedly, is found in the regulations "from which both parties have drawn the bulk of their proposals." The Union opposes its addition unless IRS produces "some authoritative explanation of the clause," and the Union then has an opportunity to examine it "for value and correctness." Otherwise, the parties could be "immediately engulfed" in an interpretation dispute in which the Government may be "liable for back pay and attorney fees."

    b. The Employer’s Position

    The Employer proposes the following:

A reduction in force (RIF) is the release of a competing employee from their competitive level by furlough for more than thirty (30) calendar days, separation, demotion, or reassignment requiring displacement, when the release is required because of lack of work; shortage of funds; insufficient personnel ceiling; reorganization; the exercise of reemployment or restoration rights; or reclassification of an employee’s position due to erosion of duties when such action will take effect after an agency has formally announced a RIF in the employee’s competitive area and when the reduction in force will take effect within 180 days.

Unlike the Union’s proposal, the Employer’s incorporates the entire definition of a RIF contained in 5 C.F.R. 351.201(a)(2), including reference to the 180-day time period. By eliminating this 180-day requirement, the Agency would be required "to use RIF procedures whenever it downgrades employees due to erosion of duties at any point after it has announced a RIF -- the RIF need not occur within 180 days of the downgrade." The Union’s proposal appears to be based on the mistaken belief that the regulation requires the Agency to complete a RIF within 180 days of the downgrade, when all it states is that "if a RIF occurs within 180 days of a reclassification action due to erosion in duties, then a RIF must be the mechanism used to downgrade the employee."

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal which simply tracks OPM regulations. There is no indication in the record that either OPM or the Employer interprets this language as requiring completion of a RIF in 180 days. A natural reading (and the Employer's reading) is that this last phrase modifies that ending part of the sentence relating to RIF actions due to erosion of duties, which is not the situation presented by the instant RIF.

5. ISSUE #6 (Union § 1 C, last two sentences)

Union Statement of the Issue:

Will this agreement contain language which clarifies that no unilateral changes that may have occurred prior to this agreement are authorized by this agreement and which clarifies what remedies will be taken as a matter of contract?

Employer Statement of the Issue:

Will this agreement prohibit the Employer from reassigning work in expectation of a reorganization and RIF? Further, will this agreement contain language concerning a status quo ante remedy for a Union claim of a unilateral change in conditions of employment?

    a. The Union’s Position

    The Union proposes the following:

In no case is IRS authorized by this agreement, implicitly or explicitly to reassign work in expectation of the reorganization and RIF. The parties agree that where a unilateral change has occurred prior to notice or the completion of bargaining the Employer will take all reasonable steps to return the situations to the status quo and make adversely impacted employees whole.

The primary concern which this proposal is intended to address is, once again, "the effect of this agreement on other agreements or disputes." In this regard, because of the FLRA’s "covered by" doctrine, the Union "wants to preserve a clear path to challenging Employer action that occurred prior to (and outside the bounds of) this agreement." Contrary to the Employer’s claim that the proposal would interfere with its right to reassign work in expectation of the reorganization, "we know of nothing in the law" giving it the right to "unilaterally and prematurely implement any reassignments that would otherwise be subject to the RIF." The proposal would make clear that if there is a violation of law or agreement relating to the premature implementation of the reorganization, "any arbitrators addressing the remedy are advised to move in a consistent direction." The inclusion of the phrase "the Employer will take all reasonable steps to return the situations to the status quo" would permit arbitrators to deviate from a status quo ante remedy consistent with the criteria established in case law. In summary, its proposal is a "virtual mirror of the law" except where it attempts to minimize the "potential inconsistencies" that could arise from different arbitrators dealing independently with allegations of illegal implementation. With respect to the allegation that the proposal violates management’s right to assign work, the Employer has totally misread the proposal -- it only states that nothing in the agreement authorizes IRS to reassign work in anticipation of the RIF and reorganization. Therefore, its proposed wording merely establishes that the Union has not waived its right to challenge any decisions by the Employer to make such reassignments in an appropriate forum. Finally, the last sentence of the proposal merely outlines an agreement as to what steps an arbitrator should take if illegal unilateral actions occurred, and "is not a bar to Agency actions past or future."

    b. The Employer’s Position

    The Employer has no counterproposal, nor does it have a duty to bargain over the Union’s proposal. By "absolutely prohibiting" management from reassigning any work in anticipation of the RIF or new organizational structure, "even if the workload reassignments have no more than a de minimis impact on the remaining employees," the proposal excessively interferes with its right to assign work, under section 7106(a)(2)(B) of the Statute. On the merits, its proposal becomes "extreme and untenable" in light of the extensive joint efforts undertaken by the parties to provide certain benefits and protections to employees in abolished positions. As a result of those efforts, approximately 1,200 employees have already left targeted positions and are no longer available to do the work previously assigned to them. The proposal is "ludicrous" because "critical work will simply not get accomplished." Further, the part of the proposal which would require management to take all reasonable steps to return to the status quo ante whenever changes in conditions of employment are made prior to the completion of bargaining, in effect, would make an appropriate remedy "a matter of contract." This is unreasonable because: (1) it would prevent unilateral changes from being made in an emergency or to the extent consistent with the functioning of the Agency; (2) the FLRA has determined that the appropriateness of a status quo ante remedy should be decided on a case-by-case basis; and (3) Articles 42 and 43 of NORD IV already permit the Union to address the issue of a unilateral change under the institutional grievance and arbitration procedures.

CONCLUSIONS

    The Arbitrator declines to adopt the Union's proposal on the merits. Concerning the first sentence of the proposal, the Union has not demonstrated a need for its proposal given its explanation that, whatever can be read into its language, it intends the creation of no obligations or rights by this language and only wants to make clear that the agreement does not waive any of its rights to challenge actions of the Employer. Those rights exist independent of this agreement. To adopt the Union's proposal language would place language in the contract that on its face is confusing and subject to an interpretation that something more than preservation of rights is intended. Regarding the second sentence, the Union's stated intention of merely providing "advice" to arbitrators while acknowledging the legal parameters surrounding the issue of status quo remedies fails to justify including contract language that, as with the first sentence, is less than clear as to the intended purpose. It is preferable for the Union to address its arguments for a status quo remedy to the arbitrator or other adjudicator who is considering any grievance or appeal it may make, on a case by case basis. Because this issue is resolved on the merits there is no need to address the Employer's negotiability arguments.

6. ISSUE #7 (Union § 1 D, sentence 1; Employer Introduction § D)

Will this agreement be administered in accordance with local contracts and past practices?

    a. The Union’s Position

    The Union proposes the following:

A RIF within the Internal Revenue Service shall be carried out in accordance with applicable laws, regulations, all national and local contracts, past practice, and this Article.

Its proposal refers to "local contracts and past practice," while the Employer’s does not. Because NORD IV "prescribes the binding nature of both local agreements and past practice," the Arbitrator "has no authority" to craft a midterm agreement that "omits this clear obligation" of the parties’ term agreement. The Union’s wording merely aims to ensure that local agreements or practices will be binding for purposes of the current RIF "so long as this national midterm agreement does not conflict with them." Moreover, in the absence of such wording, the Union would have to address many more issues in the current bargaining to protect employees and preserve working conditions, which is "hardly an efficient approach." Its proposal is also consistent with what the Panel ordered in a previous case involving the role of local agreements in negotiations over RIF procedures.(7) A decision to adopt the Employer’s proposal, on the other hand, would create an untenable situation where NORD IV "says one thing about the preservation of past practices not specifically changed by a national agreement and the midterm RIF agreement says or suggests another." Further, the position the Employer took throughout the negotiations on this issue, i.e., that it did not wish to be held liable for "past practices, since it did not know what the term meant and it had no way to identify them," should be rejected. Among other things, a union could never enforce its right to bargain over changes in past practices if it is acceptable for an employer simply to plead ignorance of them. Finally, adoption of the Union’s proposal presents a "win-win" situation for both parties, whereas adoption of the Employer’s would not.

    b. The Employer’s Position

    The Employer proposes the following:

A RIF within the Internal Revenue Service shall be carried out in accordance with applicable laws, regulations, national contracts, and this Article.

Adoption of its proposal would further the Agency’s goal of producing a comprehensive RIF agreement "which clearly and completely identifies the processes involved and the rights and benefits provided to employees." It would also serve as "an easy reference guide" for employees. The Union’s proposed wording refers to local contracts and past practices. Its adoption would confuse matters and "prevent a comprehensive RIF Agreement." Past practices are often vague and poorly understood, and the parties at the national level undoubtedly are not fully aware of all the terms in local contracts. Thus, the incorporation of either into the RIF Agreement "could result in a ‘final agreement’ which is anything but final," and lead to future litigation. Moreover, if the Union wanted to ensure that a specific past practice was included in the agreement, "it should have made a proposal concerning that specific past practice." The Panel essentially adopted the Employer’s position in a previous case when it rejected a union proposal which would have incorporated all past practices into a successor agreement.(8) Finally, it would be "ridiculous" for the parties to place into this agreement provisions of which they are not even aware.

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal finding that reference in that proposal to "applicable laws, regulations and national contracts" therein preserves what the Union states is the purpose of its proposal, namely, to preserve the rights given to the Union in NORD IV (and the law) to bargain over changes in existing working conditions. This intention is stated in the Union pre-hearing brief as follows:

The contract [NORD IV] provides, as does the labor law, that once a working condition has been established it cannot be changed without notice to the other party, whether that be at the national or local level. [Citation omitted.] The union's proposal on this issue merely aims to reflect the law and this contractual arrangement the parties have developed around changes in practice.

By its terms, the Employer proposal defers to the labor law and the contractual arrangements in NORD IV.

    On the other hand, the Arbitrator finds the Union's use of the term "past practice" to be misleading in this context, since it equates this term with "existing working conditions" (see prehearing brief). But these are distinct concepts in labor law and not coextensive. "Past practices" are a subset of existing working conditions that are enforceable as unwritten contract because they rest on demonstrated mutuality of behavior, knowledge, and reliance. As de facto contract, past practices cannot be changed without agreement. NORD IV specifically addresses the relationship of local to national agreements, and the parties' obligations when working conditions are changed and the parties are best served by addressing such issues in that context. In the Arbitrator's view, rather than clarifying, the Union's proposal creates uncertainty.

7. ISSUE #8 (Union § 1 D, sentences 2-4)

Union Statement of the Issue:

Will this agreement reflect a commitment that the reorganization will be conducted in a uniform manner for unit and nonunit employees alike?

    Employer Statement of the Issue:

Must the Employer take all steps "practicable" to reduce the adverse impact of a RIF on bargaining-unit employees? Further, will this agreement require parity with nonbargaining- unit employees?

    a. The Union’s Position

    The Union proposes the following:

The Service is committed to taking all steps practicable to lessen the adverse impact on employees. One measure of this is a commitment to take the same steps to lessen the impact of the RIF on unit employees that it did nonunit employees unless it can be shown that to do so in a particular case would excessively interfere with a management right. Where the Employer believes it would excessively interfere with its rights, it will put all its reasons for that conclusion in writing at the time it denies the employee his or her request or within 15 days of the employee making the request, whichever is sooner.

Overall, its proposal would reflect "in the agreement" the existing obligation in 5 C.F.R. 351.201(c) that employers apply RIF procedures "uniformly." This concept is so "vital" to the implementation of a RIF that it should be written into the document that will guide the RIF, and be handed to every manager, Union steward, and employee "who is impacted by the RIF." Since the Merit Systems Protection Board (MSPB) has "repeatedly" held employers liable for ignoring this principle, including it in the agreement would benefit all parties by drawing more attention and, arguably, promoting greater adherence to it. The proposal is also justified because a number of benefits, particularly in the area of moving expenses, have been provided to nonbargaining-unit employees which have not been granted to unit employees. Its additional wording is intended to acknowledge that the obligation to be uniform "in all likelihood has limits," i.e., the RIF Agreement or the law and regulations may legitimately mandate some disparities. Hence, its proposal would allow for this, and "avoid confusion over a potential conflict between law and contract." Finally, the Union has made changes in the wording of its original proposal on this issue which render moot the Employer’s allegations of nonnegotiability.

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s original proposal(9) on this issue is outside the duty to bargain because, in various ways, it interferes with management’s rights under section 7106(a)(2)(A) of the Statute to retain, layoff, and assign employees, and under section 7106(b)(1) to determine the numbers, types, and grades of employees assigned to an organizational subdivision. For example, because it requires that bargaining-unit employees be treated the same as nonbargaining-unit employees, "if the Agency did not abolish a management position, it would be prohibited from abolishing a unit position." As a result, the proposal directly interferes with management’s right to layoff employees because it places substantive restrictions on that right.

    On the merits of the Union’s revised proposal, it "will serve only as an invitation to endless litigation" and the filing of grievances, and thwart the objective of reaching a comprehensive RIF Agreement. This is because the meaning of the word "practicable," and the extent to which "parity" is required, are completely undefined. Moreover, because the circumstances currently facing the Agency differ from those which existed when it reorganized the nonbargaining-unit employees in 1995, "exact parity is no longer feasible." In this regard, for historical reasons relating to Congress’ failure to provide certain funding in FY 1996, the RIF is "going to impact the bargaining unit more heavily." Finally, the Union’s proposal seeks to obtain parity of treatment for the bargaining unit only with respect to the advantages that nonbargaining-unit employees allegedly received. This would be unfair, particularly given the fact that (1) some nonbargaining-unit employees were given directed reassignments outside of their commuting area, and (2) under previous agreements, bargaining-unit employees were given priority selection for bargaining-unit vacancies over nonbargaining-unit employees. Thus, "if the Union wants parity, bargaining-unit employees should be subjected to the same disadvantages as the nonbargaining unit."

CONCLUSIONS

    The Arbitrator declines to adopt the Union's proposal on the merits, which she finds unrealistic and overly broad, and suggesting a scope well beyond its stated purpose of "merely seek[ing] to reflect in the agreement the existing obligation of regulation 5 CFR 351.201(c) which requires that an employer apply the provisions of a RIF, 'uniformly'" (Union prehearing brief). By making "excessive interference with a management right" the only grounds for not according "the same" treatment, the proposal excludes consideration of changed circumstances which may, in a given situation, justify different accommodations being made now than were made 2 years ago. The "sameness" dictated is also open to possible interpretations, or expectations by employees, that things like moving expenses have to be matched dollar for dollar. There is no guidance as to the appropriate reference point. The difficulties in applying this proposal are not hard to envision and will not be imposed upon the parties. As the Union agrees, employees already have the ability to invoke the regulatory requirement of acting "uniformly".

8. ISSUE #9 (Union § 1 E, last sentence)

Will the Employer mail to all employees at their home addresses material prepared by the Union?

    a. The Union’s Position

    The Union proposes the following:

Additionally, IRS will mail via first class mail to the home address of all these employees in these competitive areas a package of material prepared by the Union.

Its proposal would require the Employer to attach employee mailing labels to envelopes containing material supplied by the Union, and submit the pre-paid mail to the post office. On the merits, the proposal is necessary because of changes in the law that prohibit the Employer from disclosing the home addresses of employees to the Union. Its position is consistent with a recent ruling of a private arbitrator (and the FLRA, which upheld the ruling) who found that the Union has no reasonable alternative for communicating with unit employees. The parties adopted this practice in a prior agreement, and the Employer has never enunciated a business-related reason why it should not be done again. The Employer’s assertion that the proposal violates Federal law because the Union will use the mailing to solicit new members is based on "wild speculation." It would make little sense to ask employees "who are about to leave the rolls" to join the Union. Moreover, this ignores the legitimate representational information that it will need to distribute as a result of the RIF. Among other things, employees need to be told that only the Union can represent them should RIF matters be appealable through the grievance procedure, and that only it may decide whether their case will go to arbitration. Written mailings of information would also permit the Union to protect itself from frivolous ULP charges. While some of the information could be distributed orally, much of it requires a level of technical precision necessitating uniformity in a bargaining unit that is national in scope and where the level of recognition lies with the Union’s national office. Nor is the Union’s proposal defective, as the Employer alleges, because it would require distribution of the mailing to too wide a group of employees. Its wording is specifically limited to "these employees," i.e., "far less than the entire employee body." For these reasons, "any benefit of the doubt should go to the Union on this issue."

    b. The Employer’s Position

    The Employer has no counterproposal. Because the Union’s "primary goal" is to shift the cost of mailing "propaganda and recruiting materials" to the Agency, the proposal violates section 7131(b) of the Statute by requiring management to use its employees to mail material related to internal Union business. The cost of mailing such material, even if it merely required $.32 postage for each bargaining-unit employee, would be $31,360. Given that the proposal does not specify any limitations on the amount of material the Union could send, the Agency could be required to spend "hundreds of thousands of dollars." Moreover, the Union has alternative ways of communicating with employees. In this regard, it already has access to employees’ home addresses provided by the Agency as recently as July 1996. In addition, there are numerous provisions in NORD IV which can be used for this purpose, among them, ones that require the Employer to mail each unit employee one piece of first-class mail on a quarterly basis, and to provide the Union with bulletin boards and "Take One Bins" adjacent to cafeterias and snack bars. For these reasons, there is no justification for the Union’s proposal.

CONCLUSIONS

    The Arbitrator adopts the Union's proposal. The Employer's objections and negotiability argument are based purely on speculation and an assumption that the Union will violate legal constraints and include in the mailing material that pertains to internal Union business. The parties have had experience with such arrangements in the past and the Employer offered no actual incidents to support its predictions here. The Employer has a remedy if, in fact, the Union violates the law, something that the Arbitrator does not believe the Union has any intention of doing. There is a great deal of useful information and advice for the Union to dispense to bargaining-unit employees in a RIF context. Unions in the Federal sector must operate within privacy rules that severely limit their off-site access to the people they represent and this is a reasonable proposal to ameliorate that situation. The Union indicates a reasonable approach, predicting its mailing will be in standard size business envelopes and no longer than six pages.

9. ISSUE #10 (Union § 1 F)

    Union Statement of the Issue:

Will the Employer be barred from filling job vacancies during this agreement and will it be clear from the agreement that nothing authorized the earlier filling of the so-called "needs" jobs?

    Employer Statement of the Issue:

Will the Employer be required to freeze the "needs jobs" on implementation of this agreement? Moreover, will this agreement prohibit the Employer from filling the "needs jobs" prior to the implementation of the agreement?

    a. The Union’s Position

    The Union proposes the following:

With the implementation of this agreement, the Employer will cease or freeze all actions connected with filling the "needs jobs" or those jobs created by the reorganization to do the work of the abolished or moved positions. Moreover, nothing in this agreement authorizes or condones any earlier efforts to fill those jobs.

The purpose of the proposal is to prevent the Employer from filling the jobs created by the movement of work to a different part of the organization until the RIF is complete, and simultaneously to require it "to fill them only in accord with the terms of the agreement." In this regard, "there is some evidence" that management has already attempted to fill the needs jobs, so clear contract wording is required to ensure that those employees most adversely affected by the RIF have had their best opportunity to find continuing work with the IRS. The proposal is advantageous to the Employer as well, as "there can be little dispute with the fact that the best people to fill these jobs are those who hold them today." Until the employees currently doing the work are removed from their positions by virtue of the RIF, filling the positions elsewhere would amount to "double-encumbering" the budgeted positions, or "paying two people to fill one budgeted slot." To the extent that the RIF is being implemented to save funds, the Union’s proposal meets that interest. In addition, filling the needs positions before giving adversely affected employees their appeal rights "smacks of management arrogance."

    Its proposal would not prevent IRS from filling the needs positions forever, but only until employees, primarily RIF victims, have a chance to bid on or move into the jobs "at various points in the RIF process flow," in accordance with its other proposals. The Employer is also not prevented from using alternative means to do any needed work, such as temporarily detailing employees or breaking up the job so that several employees perform smaller portions of it. For these reasons, contrary to the Employer’s contention, the proposal is negotiable.(10) As in a number of its other proposals, the last sentence is intended to make it impossible for the Employer to claim that this agreement absolves it from "any premature, illegal actions it may have taken to fill these jobs," and the Union should not be "faulted" for attempting to make the contract "crystal clear." Finally, since the IRS plans to impose a total freeze on the filling of positions soon after this agreement is signed, no harm would be done by adopting the Union’s proposal to freeze the filling of just the newly-created needs jobs.

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s proposal excessively interferes with its right to hire, make selections, and determine the numbers, types, and grades of employees required to meet its mission requirements.(11)  It would do so by totally abrogating the exercise of these management rights, and would prevent the filling of vacancies even where it is advantageous to RIF-impacted employees. In addition, to the extent the proposal suggests the freezing of vacancies prior to the implementation of the agreement, it is governed by Pre-RIF I, and outside the duty to bargain. It also would "significantly harm" unit employees while serving no purpose other than a political one of preventing the completion of the reorganization. In this regard, the parties have negotiated Amendment Three to the Pre-RIF Agreement requiring the Agency to announce those vacancies which it intends to fill in its post-RIF organization and to give priority selection to those employees who have been issued Certificates of Expected Separation (CES). Despite this, the Union now proposes to discontinue the filling of the needs jobs even if there are "at-risk" employees qualified for needs positions and willing to accept them. As testimony at the arbitration hearing showed, there are approximately 1,100 field employees who received a CES and 600 - 900 remaining needs positions to be filled. Finally, the proposal’s last sentence "makes no sense" and is "extremely confusing" because the parties have already agreed to make efforts to fill the needs positions in the Pre-RIF Agreement and Amendment Three.

CONCLUSIONS

    The Arbitrator declines to adopt the Union's proposal on the merits. This is the first of a number of issues where the Union's intention is improving or increasing the options (and welfare) of IRS employees facing RIF, but where examination of the actual import of its proposal language creates questions as to the actual impact. A RIF, of all personnel actions, is one where affecting the rights and options of one employee may directly and inevitably impact the rights, options, and outcomes of another (or others.)(12) In its Pre-RIF agreements the parties have proceeded on the basis of encouraging as much movement as possible of employees expected to be targeted by the RIF. The purpose is to get employees out of non-continuing positions so that the need for a RIF can be obviated to the maximum possible degree. Thus, in Amendment III to the Pre-RIF agreement, signed in late May, the parties opened the "needs" positions to employees receiving CTAP/CES notices. The instant proposal would have that now end, and have the vacancies frozen to maximize the opportunities of employees farther down the RIF timeline. It is not clear that this is necessarily better for employees, or most employees. At the hearing, the Union said its intention was only to bar merit actions, not CTAP/CES movement into needs positions, and also maintained that this proposal does not bar temporary assignments or details. But the proposal, by its terms, is not so limited. It says "the employer will cease or freeze all actions connected with filling the 'needs jobs'." This contrasts with the significantly narrower union proposal in the NRC and NTEU case that proposed freezing "reassignments and competitive promotions." The Arbitrator is without authority in this case to redraft the Union's proposal and is unwilling to adopt language which on its face is inconsistent with the supporting rationale. Aside from the confusion created for all parties concerned with the administration of this agreement, there is the fact that under standard rules of contract interpretation a grievance arbitrator asked to enforce this contract would be justified in going no further than the plain meaning of the unambiguous term, "all actions."

    The Arbitrator considers the second sentence of the Union's proposal inappropriate given the Union's pre-RIF agreement about filling needs positions, and its existing rights to redress any management actions which it believes violates that, or other, agreements.

    Given the Arbitrator's decision to reject the Union's proposal on the merits, it is unnecessary to address the Employer’s allegations of non-negotiability, however, the differences between this proposal and the one in the NRC and NTEU case, referenced above, reflect this Arbitrator's view that there is no "substantially identical" FLRA decision establishing the negotiability of the Union proposal.

10. ISSUE #11 (Union § 2 A; Employer § I A)

Union Statement of the Issue:

Will employees be given administrative time to attend a Union orientation or training session on the new RIF procedures? If so, when will the meetings occur and what other procedures will apply? In the alternative, will employees be limited to using administrative time to attend management run formal meetings to learn about the RIF?

Employer Statement of the Issue:

Will the Union be permitted to conduct employee briefings during work time, and if so, under what circumstances? Further, will these briefing be with "all employees" as proposed by the Union or "any employee in a competitive area undergoing a RIF" as proposed by the Employer?

    a. The Union’s Proposal

    The Union proposes the following:

All employees, and any involved Union representatives, will be given 1 hour of administrative time, or whatever additional time is considered reasonable, to be briefed on the RIF contract, procedures, benefits, rights, and related matters by the Union, irrespective of any formal meeting management may wish to hold with them. Management will provide space and other reasonable supplies for the Union to hold the meetings. It will also work with the Union to schedule employees for these briefings so that attendance is orderly. A management official may attend this briefing only by the invitation of the Union. These meetings will be scheduled at the convenience of the local Union officials and with the concurrence (on scheduling only) by management. However, they must be scheduled for the period after copies of the agreement have been distributed and before notices are distributed. The local parties will negotiate over whether they are to be scheduled before or after any management formal meetings. These briefings in no way impact on the right of management to schedule its own formal meetings nor the contractual and legal rights of the Union in those formal meetings.

Its proposal should be adopted because it "is far clearer and easier to administer" than the Employer’s. In this regard, "virtually all IRS employees" will be affected by the RIF. If case law requires that the proposal be limited to only "adversely impacted employees," however, the Union is willing to interpret the proposal accordingly. The amount of time requested is reasonable given the nature of the discussions to be conducted. By setting forth straightforward procedures, one-on-one discussions between Union representatives and employees are likely to be avoided, to the benefit of all concerned, including the Employer. The proposal also has the advantage of providing guidance to local stewards and managers as to how the meetings would be arranged, thereby avoiding any potential clash with management’s right to assign work. As to the argument that its proposal interferes with management’s right to assign work, the Union could not have made it any clearer that the scheduling of these meetings would be "with the concurrence of management." In addition, the existing provisions within NORD IV apply to Employer-scheduled formal meetings, and not to the representational meetings contemplated under its proposal, so the matter is not covered by them. The Employer’s proposal, on the other hand, is unacceptable because it "amounts to nothing more than a pledge to hold a statutory formal meeting about the RIF with ‘impacted employees’." Because Article 9, Section 2, D of NORD IV "does not clearly apply to RIF situations," disputes over the implementation of the proposal would be inevitable were it to be imposed by the Arbitrator.

    b. The Employer’s Position

    The Employer proposes the following:

Any employee in a competitive area undergoing a RIF who is in a series at or below the grade level which is scheduled for some job abolishment will be given administrative time to be briefed by management on RIF procedures, rights, and related matters. Consistent with Article 8, Section 1 F of NORD IV, a Union representative will be entitled to attend the briefing. Immediately following the conclusion of the briefing, the Union will be provided with up to 30 minutes to meet with employees.

The Union’s proposal conflicts with management’s right to assign work under section 7106(a)(2)(B) of the Statute, and is not an appropriate arrangement since it does not preserve management’s right to require employees to remain on duty to perform necessary work. It is also nonnegotiable because it is covered by Article 9, Section 2, D of NORD IV, which specifically describes when Union stewards will be granted official time. On the merits of the proposal, there is no need for the Union to provide additional briefings to employees. The Employer is already entitled by law (section 7114 of the Statute) and contract (Article 8, Section 1, F of NORD IV) to brief employees on matters regarding conditions of employment, and the Union is entitled under the contract to meet with employees separately for 30 minutes afterwards. The Employer is planning on exercising those rights by providing employees in competitive areas undergoing the RIF with a 4-hour "training course." Another 1-hour meeting would cost the Employer additional work time and travel costs for employees in remote posts of duty, and is particularly unacceptable if it would be attended by "all employees," as the Union proposes. Finally, requiring local negotiations before either party may provide briefings would only cause further delay in the issuance of RIF notices and not result in "a comprehensive and complete RIF Agreement."

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal. Providing time to all 98,000 bargaining- unit employees, not just those in the areas of the IRS where the RIF will occur, to be briefed by the Union about the RIF goes beyond what is reasonably called for. The Union already has the right under its term agreement for a representative to be present at the formal meetings the Employer will hold concerning the RIF, and to have 30 minutes at the end of that meeting to brief employees without management present. The Arbitrator has ordered adoption of the provision allowing for the Union send out RIF information and advice by mail. Implicit in the Employer's language being ordered is that employee briefings will take place after this agreement has been concluded, the agreement necessarily comprising one element of the "RIF procedures, rights and related matters" to be addressed.

11. ISSUE #12 (Union § 2 B 1 and 2)

To what extent will the Employer offer early out and buy out authority?

    a. The Union’s Position

    The Union proposes the following:

The Employer will maximize the use of authority it has to grant early out retirements. It will grant an early out retirement to any applying employee whose position could be filled at any grade in the career ladder by a qualified employee in a noncontinuing position so long as the qualified employee has applied for that position or otherwise indicated he or she would move to the position once vacated.

IRS will use its buy out authority to the maximum extent possible under law to lessen the impact of the RIF. Buyouts will be made available to all employees who are in noncontinuing positions or who hold a position that could be filled by those employees qualified and willing to do so, irrespective of geographic location. Moreover, IRS will also seek authority from whomever is necessary to extend its buyout authority to reach all possible groups of employees. It will do this prior to the effective date of this contract.

Under its proposal, the Employer would be required to "aggressively" use its early out and buy out authority to create openings for employees who otherwise would be adversely affected by the RIF, although management would not be required to select "the potentially RIF’d employee." If adopted, this would do "several positive things for the Government." The Employer would be: (1) keeping an employee who wishes to stay while facilitating the retirement or separation of one who wishes to leave; (2) potentially avoiding the need to RIF in one or more offices, and the "related chaos" of that action; and (3) voluntarily accomplishing the reorganization it wants. While the Union was willing to accede to management’s desire in pre-RIF agreements to limit its early out and buy out authority so that resources were conserved, with the RIF imminent, the broader wording of its proposal is now justified. Moreover, among other things, maximizing buy out opportunities makes sense because of the fact that previous efforts have "nearly cut the need for the RIF in half," and the IRS has not used all of the over 2,000 buy out slots that it allotted, and Congress approved. As to the Employer’s nonnegotiability allegations, the Union knows of no management right to prevent employees from leaving the Agency. The Employer also "misconstrues" the proposal because it does not require management to fill positions with at-risk employees -- the Agency could choose not to place them in the vacant position. It would also have a limited impact because the benefit only lasts as long as there are at-risk employees. Finally, the Union’s proposal represents yet another instance where both the Employer and employees would win if it were adopted. It appears that the only reason the Employer opposes it is that "the idea was not theirs."

    b. The Employer’s Position

    The Employer has no counterproposals on this issue "in light of Amendment Three to the Pre-RIF Agreement."(13) The Union should be required to withdraw its proposals for a number of reasons. First, they interfere with management’s right to retain and lay off employees, and would result in the departure of employees from the Agency that it does not wish to lose; nor are they appropriate arrangements because they excessively interfere with its right to make selections by requiring positions of retiring employees to be filled by qualified employees in noncontinuing positions, as well as its right to assign employees.(14) Second, in their previous pre-RIF agreements the parties implemented two different sets of buy out proposals which offered buy outs not only to at-risk employees receiving CESs, but also to any employee within the competitive or commuting area whose departure would create a placement opportunity for an employee with a CES. Because Federal regulations require agencies to reduce employment levels by one full-time equivalency for each buy out offered, the parties agreed to cap the number of buy outs to the number of employees expected to be separated in the RIF. Thus, among other things, offering buy outs "without limitation," as the Union proposes, could reduce the Agency’s staffing level below what is required "to maintain an effective organization." Third, the Agency’s experience with its Pre-RIF Agreement demonstrates that at-risk employees are overwhelmingly unwilling to move to new positions outside their commuting areas, so maximizing buy out authority along the lines the Union proposes could result in the Agency paying great sums of money (the average cost of a buy out to the Agency is $30,000) "for the creation of vacancies that employees will not move to fill." Fourth, because the Union’s proposal would result in the offering of an unlimited number of buy outs nationwide, it would exceed the plan originally offered by the Agency and approved by Congress. Thus, "the Agency would have to seek additional authority from Congress to extend buy outs." Fifth, the proposal also requires the Agency to obtain approval to offer the buy outs "prior to the effective date of this contract;" as it has not sought the necessary approval, IRS could be in breach of the RIF Agreement "as soon as it is effective." Finally, because the Union’s early out proposal is inconsistent with Amendment Three, it too should be rejected.

CONCLUSIONS

    The Arbitrator must decline to consider the Union's proposal. The Union has urged eloquently here, and with respect to several other issues, that the competitive areas drawn by the Employer for this RIF are overly narrow, unfair, and arbitrary. The appropriateness of those competitive area determinations is not before this Arbitrator, however, as all agree. The "remedy" to the competitive area situation hoped for by the Union in this proposal, is a mandatory, national buy-out program. But this proposal cannot be addressed by the Arbitrator due to the negotiability questions raised by the Employer.

    It is plain under the FLRA's decision in Carswell(15) that interest arbitrators in the Federal sector are not authorized to make negotiability rulings in order to resolve such issues, when raised. We can resolve such issues only if it is possible to apply existing FLRA law arising from a case in which the issues are "substantially identical," and the parties’ contentions and proposals are similar. The Union has cited no case satisfying this standard and, in fact, FLRA cases cited by the Employer suggest a view by the Authority that does not support the legality of the Union's proposal. Thus, the Union has to seek a determination on the negotiability of its proposal from the FLRA before the proposal can be considered on its merits. Should the Union obtain a ruling from the FLRA declaring the negotiability of its proposal and the parties reach impasse in subsequent bargaining, a new request for assistance from the Panel can be filed.

    In its presentation during this case the Union cited several narrower concerns, such as the length of time of the existing buy out program, and the impact of the limitation to the "commuting area" in that program where jobs just outside the prescribed commuting distance are unavailable even though quite feasibly "commutable." However, the Union proposal is not tailored to address those subjects more directly, despite the early Panel determination of a "final offer" procedure for resolving this impasse. The Arbitrator has no authority under the Panel's order to revise or rewrite the substance of the parties' proposals.

12. ISSUE #13 (Union § 3 A.1.; Employer § V A 1, sent. 1)

How long will employees have CTAP notices prior to being RIF’d, i.e., for at least 6 months or no more than 6 months?

a. The Union’s Position

The Union proposes the following:

Certificates of Expected Separation (CES) or CTAP letters will be provided to employees in noncontinuing positions 6 months prior to the effective date of one’s removal from their competitive level. In no case will an employee have less than 6 months of employment with a CES prior to being Rif’d absent an emergency, as understood under 5 USC Section 7106(d).(16)

The granting of CES/CTAP status to employees creates a "win-win" situation for the employees and the Government because, under the program, a certified employee is entitled to bid on vacant positions within the IRS or other agencies and, if well-qualified, must be selected. Among other things, by placing employees in this manner the costs and disruption of RIF’ing those employees is avoided. For this reason, "the longer the employee has the certificate the greater the chances of realizing this mutual gain." A 6-month period is warranted since: (1) over 1,000 employees have already had CTAP letters for 6 months under one of the parties’ pre-RIF agreements, and it would be "patently unfair" to grant a lesser period to other employees "unless there is a good reason to do so;" (2) IRS never issued certificates to "all potentially impacted employees" last year, as it agreed to do, "because of its own poor record keeping," and employees should not lose a reasonable opportunity to use CTAP benefits due to "Employer incompetence;" (3) "in all likelihood," it will take that long for management "to finalize the RIF;" and (4) without the threat of a significant penalty, the Employer "has no motivation to administer this benefit evenhandedly." While the Employer does not oppose 6 months, its proposal should be rejected because it is designed to grant management "immunity from a make-whole arbitration remedy" should it fail to do so.

    b. The Employer’s Position

    The Employer proposes the following:

Career Transition Assistance Program (CTAP) certifications will be issued and provided to all competing employees as soon as possible after the completion of the personnel data verification process and not more than 6 months prior to the proposed effective date of a reduction in force.

Its proposal merely restates the time frames the parties agreed to in their Pre-RIF Agreement, which in turn "was adopted from 5 C.F.R. 351.807." Unlike the Union’s proposal, it would provide the Agency with "the flexibility needed to balance the benefits which CTAP provides to employees with the Agency’s need to run a RIF." The Union’s proposal, on the other hand, "seeks to change the terms of the Pre-RIF Agreement" without any justification, other than to delay the RIF. In this regard, when coupled with its other proposals, "the Agency would be unable to separate employees for 1 year." The proposed wording also would have the Agency provide CTAP rights to employees occupying noncontinuing positions rather than to employees facing RIF-separation, which is inconsistent with Amendment Three of the Pre-RIF Agreement, and would require the revocation of all CESs. Finally, during the arbitration hearing the Union stated that its proposal would not hold up the RIF in any competitive area, but merely exempt certain employees from the first RIF until they had CESs for 6 months, at which time the Agency could then conduct a second RIF to place those employees. While the proposal "is highly innovative," it is also "highly illegal" because the RIF regulations do not permit an agency to "exempt" employees from RIFs.

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal. The Arbitrator is sympathetic to the idea that employees facing RIF should have sufficient time to seek other employment opportunities. Less compelling is the idea that fairness necessarily dictates an equal time for all employees. In any case, this is one of those proposals referred to in the CONCLUSIONS on Issue #10 where it is not clear that a provision that on its surface is beneficial will not have consequences farther down the RIF timeline that are undesirable, consequences that the Union has not chosen to address. As the Arbitrator understands how the Union's proposal would, or could, work, if an employee in a non-continuing position received a CTAP/CES notice under pre-RIF arrangements and then received a RIF notice with an effective date less than 6 months from the CTAP/CES certificate issuance, the RIF action releasing that employee from his or her competitive level could not take place. The Employer has, late in the proceeding, raised the argument that this would cause an illegal, separate RIF. Illegality aside, the problem is that employees "down the line" from the employee yet to be released would have any bump/retreat displacement also delayed, which might not necessarily be in their interest given that existing vacancies might be being offered to other RIFed employees "in lieu of separation". Because of this and other conceivable scenarios, the Arbitrator does not believe the Union's suggestion as to how its proposal would work is feasible or realistic or consistent with governmentwide RIF regulations. The RIF cannot be rationally and fairly done "piecemeal." It is noted that the Union did not suggest that any significant number of employees would likely be in the situation this proposal is meant to cover.

13. ISSUE #15 (Union § 3 A 2)

Union Statement of the Issue:

Will the Employer be obligated to follow any due process procedures prior to taking a CTAP/CES from an employee?

Employer Statement of the Issue:

Will the employee be given a written notice, an opportunity for an oral and/or written reply, and a final decision in writing before the employee’s CES/CTAP notice is "taken away"?

a. The Union’s Position

The Union proposes the following:

Once a CES/CTAP letter is granted to an employee, it will not be taken away from the employee, absent a written notice of the reasons for doing so, an opportunity for an oral and/or written reply, and a final decision in writing from the Employer. All the procedures of the oral and written reply process as found in the Adverse Action article of the contract will apply.

Because CES/CTAP letters grant employees "a substantial right or entitlement," procedural protections are necessary for "the taking" of either of these documents. Its proposal "would require a minimum of effort" on the part of the Employer, i.e., its written reasons for revoking the letters, providing the employee with a written or oral opportunity to respond, and the issuance of a final decision with reasons in writing. The proposed procedure should minimize management error, and help both parties in the event the Union’s argument, that the taking of benefits given to employees through regulation triggers a Constitutional entitlement to due process, is sustained. Even if the Union is wrong, providing some form of procedural protection now "rather than through a judicial appeal that potentially will block implementation of the agreement" is warranted, particularly given that the adverse impact on the Employer would be minimal, and the harm to the employee so great.

    b. The Employer’s Position

    The Employer has no counterproposal. Because the conditions under which an employee’s CTAP entitlement expires are spelled out in the CTAP regulations themselves, the Union’s proposal "makes little sense" and could potentially violate those regulations. For example, if an employee remained "eligible" for special CTAP benefits pending the 30-day notice and oral reply period provided under the proposal, yet the employee’s RIF separation notice was canceled during the interim, the regulation would be violated since one of the three conditions for CTAP entitlement is that the employee be identified as surplus. The adoption of the proposal could also result in an employee who is no longer at risk for RIF-separation being selected for a vacancy over an employee who is at risk. With respect to the Union’s argument that before rescinding an employee’s CTAP certificate he or she is Constitutionally entitled to "a pre-deprivation 5th Amendment due process hearing," the Supreme Court recently ruled that no such right existed when an employee was suspended without pay before receiving notice and a hearing.(17) This supports the Employer’s view that a CTAP certificate is not a sufficient "property interest" to trigger pre-deprivation due process requirements, and that the parties’ negotiated grievance procedure is the appropriate avenue for challenging such management decisions.

CONCLUSIONS

    The Arbitrator declines to adopt the Union proposal on the merits. The Union has not been persuasive about the need for the procedure proposed. CTAP/CES notices are revoked only when eligibility ends and this takes place under three specific, objectively-verifiable situations: RIF-separation, cancellation of the RIF notice or other certification identifying the employee as surplus, and appointment to a permanent position. The Arbitrator's view is that the grievance procedure is adequate to take care of any complaints of error with regard to such criteria on a timely basis. The Union has not explained away the Employer's contention that the time the Union would build into a reply process in its proposal could possibly disadvantage other employees. (See the Arbitrator's concerns expressed on Issue 10 about the actual, if unintended, impact of Union proposals.)

 

ENDNOTES

1.Due to other developments which arose during the period between the Panel’s designation of the undersigned as Arbitrator and the arbitration hearing, I was also granted the authority to order the parties to withdraw their proposals with regard to those issues where, in my judgment, neither party’s final offer could be implemented effectively consistent with the terms of the parties’ “Amendment Three” agreement of May 27, 1997.

2.I also met with the parties for a pre-hearing conference on June 30, 1997, primarily to discuss the procedures that would be followed during the hearing and any other preliminary matters. In the course of the pre-hearing conference I sustained the Employer’s objection to the Union’s May 14, 1997, revised final offer by requiring it to revert back to its original proposals on Issues #11, #26, #55, and #69. Also, the Union was permitted to submit a supplemental pre-hearing brief of one page on the merits of each of its original proposals on these issues, but subsequently elected not to do so.

3.In its post-hearing brief, the Employer objected to a suggestion made by the Union during the arbitration hearing that the effective date of this Opinion and Decision be deferred for 30 days to give the parties sufficient time to review and “improve” it.

4.Following receipt of the parties’ post-hearing briefs, the Union filed a “Motion to Reopen the Hearing Record,” alleging that the Employer raised new factual assertions and arguments in its post-hearing brief to which the record had been closed that “gravely harmed” the Union, and which required a reopening of the record to permit rebuttal to prevent the “substantial possibility” that this Opinion and Decision would be based “on a nonfact.” The Employer filed a “Response to the Union’s Motion to Reopen the Hearing Record” denying the Union’s allegations, and opposing the motion. Thereafter, I conducted a conference call with the parties during which the Union’s motion to reopen the record was generally denied, although exhibits 2, 3, 4, 6, 8, 10 and 11 attached to the Employer's post-hearing brief were denied admission to the record since this factual evidence was available at the time of the hearing and could have been proffered then. The Union was permitted to submit a response to what it alleged were nonnegotiability allegations raised for the first time with respect to its proposal on Issue #13; the Employer was permitted to submit to the Union and the undersigned a follow-up letter explaining the conditions surrounding Congress’ approval of its most recent buy out plan, a matter raised for the first time during the arbitration hearing; and both parties were permitted to submit affidavits regarding the Union’s allegation that certain facts surrounding the Employer’s presentation during the arbitration hearing of its “time line” for completing the RIF process under its final offer were intentionally misrepresented.

5.In discussions that occurred at various stages prior to and during the arbitration hearing, the parties were able to resolve their impasse over an additional 24 issues identified by the parties as follows: Issues #5, #14, #17 through #24, #35, #36, #49, #52, #56, #58 through #61, #64, #72, #76, #78, and #80. In what follows, the 56 statements of the issues that remain were by and large formulated by the parties themselves; where they could not mutually agree to an issue statement, each party’s preferred statement is provided.

6.The Employer appears to have raised this nonnegotiability argument with respect to the Union’s proposal on this issue for the first time in its pre-hearing brief of June 23, 1997. The identical argument was also raised for the first time in its pre-hearing brief regarding the Union’s proposals on Issues #9, #15, #31(c), #70, #73, #74, #75, and #77. By way of explanation, it argues in its post-hearing brief that the Panel’s procedural determination of February 14, 1997, bars the submission of the Union’s March 21, 1997, proposals on these issues. In this regard, it states that “the new proposals contained in the Union’s [March 21 final offer] did not constitute ‘issues in dispute’ since they were not even in existence at the time of the Panel’s February 14, 1997, order. By submitting entirely new proposals on the last day of Panel-ordered mediation, the Union clearly violated the Panel’s order” (Employer’s Post-Hearing Brief, p. 12). In addition, an argument with respect to their inconsistency with Article 47, Section E, of NORD IV, was raised in its “Statement of Position Regarding Negotiability” of April 25, 1997, concerning the Union’s proposals on Issues #10, #27, #29, #33, #51, #57, #62, #63, and #67. (It was also raised on a number of additional issues which are now no longer at impasse.) Accordingly, the Employer is now on the record as having raised these jurisdictional arguments on 18 live issues in this case. The Arbitrator takes note of the Employer’s contention here, rather than repeating it 18 times in the text of this Opinion and Decision. Having noted the contention, the Arbitrator has determined not to decline jurisdiction over these issues on this basis. In all but two instances, the issues have been resolved by adoption of the Employer's proposal or by declining consideration because of negotiability issues that must be determined by the FLRA. Conceding the plain language of Article 47(F) the Employer did not rebut Union testimony concerning the origins and purpose of this language nor cite any instance in the twenty years of its inclusion in the parties' contract when it has been interpreted or applied, as here argued, despite the vast amount of bargaining in which the parties have engaged. Nor will the Arbitrator interpret the Panel's February 14 order as a separate ground for declining jurisdiction over the Union's proposals on these issues, influenced by the size of this case and the somewhat unusual procedures used by the Panel, and the very late and superficial way in which this argument was raised by the Employer.

7.Department of Defense, Defense Logistics Agency, Defense Distribution Region West, Stockton, California and American Federation of Government Employees Locals of Defense Distribution Region West, AFL-CIO, Case No. 94 FSIP 156 (February 23, 1995), Panel Release No. 371.

8.Department of the Army, Presidio of San Francisco, San Francisco, California and Local 1457, American Federation of Government Employees, AFL-CIO, Case No. 91 FSIP 85 (December 30, 1991), Panel Release 322.

9.Here, as elsewhere, the Union was permitted by the Panel to revise wording on an issue in response to Employer allegations of nonnegotiability. In those instances where it is unclear whether the Employer believes the Union’s revisions have cured the nonnegotiability problem, the jurisdictional arguments it initially raised regarding the Union’s original proposal in the statement of nonnegotiability it submitted to the Panel on April 25, 1997, have been included.

10.In this regard, the Union argues that the FLRA found a “very similar” proposal to be within the duty to bargain in National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566 (1988).

11.The Employer supports its allegation by citing American Federation of Government Employees, AFL-CIO, Local No. 12 and U.S. Department of Labor, Washington, D.C., 25 FLRA 987 (1987).

12.No doubt for this reason OPM RIF rules bar ameliorative actions like an alternative offer of assignment "if the employee's acceptance of the offer would result in a more severe reduction in force action for another employee." Module 3, Unit A, Sec. 19, para. 10.

13.The Employer withdrew its early-out proposal in the cover letter of its pre-hearing brief.

14.Among the many cases it cites to support its nonnegotiability arguments are National Federation of Federal Employees, Council of Veterans Administration Locals and Veterans Administration, 31 FLRA 360 (1988) and National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Air National Guard, 21 FLRA 905 (1986) (KANG).

15.Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988)

16.The Union revised its original proposal in response to Employer nonnegotiability allegations. As the Union’s revisions appear to have cured the alleged defects, the Employer’s jurisdictional arguments will not be addressed further.

17.Gilbert v. Homar, No. 96-651, 197 U.S. LEXIS 3546 (Sup. Ct. June 9, 1997).

(. . . continued) Issues 16 through 39

In the Matter of

DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

WASHINGTON, D.C.

and

NATIONAL TREASURY EMPLOYEES UNION

Case No. 97 FSIP 31

 

Issues 16 through 39 follow:

 

14. ISSUE #16 (Union § 3 A 3)

What process will be used to resolve CTAP/CES disputes?

a. The Union’s Position

The Union proposes the following:

However, the parties agree that any dispute over CES/CTAP provisions not otherwise covered by the "Pre-RIF" dispute resolutions process, may be grieved (since it is not part of the RIF process) and that grievance will involve the following: A- the second step of the term contract grievance process will be waived, B- if the grievance is unresolved it will be appealed to Expedited Arbitration, and C- to the extent possible, all cases in an appointing office will be consolidated for purposes of arbitration before one arbitrator. It is only with mutual agreement that any of these provisions may be waived.

There is a need for an expedited process to resolve alleged violations of employees’ CES/CTAP rights because the denial of such rights "can rarely be remedied if the grievance is not corrected within a few weeks." If the employee is already off the rolls as the result of a RIF action, it is arguable that an arbitrator cannot order that the employee receive prospective or retroactive CES/CTAP status. Moreover, an alternative to the traditional grievance-arbitration process to resolve such matters is necessary because of the complexity of the issues involved in the CES/CTAP program, which is new, and which "the parties have customized" for their own purposes. Therefore, it would be best if one arbitrator builds expertise in this area, rather than permitting "dozens of arbitrators" to issue potentially conflicting rulings. These were the reasons the parties agreed to an expedited process under one of their pre-RIF agreements. Further, the Union offered the proposal at issue because it is unclear whether the parties will terminate their pre-RIF agreements as part of the resolution of the current impasse, or whether there will be grievable CES/CTAP issues not covered by these previous agreements.

    The Employer’s proposal would "cut off any opportunity to grieve and remedy" such disputes because the traditional grievance-arbitration process will not resolve such cases before the employees are taken off the rolls. Finally, the Employer’s jurisdictional argument that the subject of the Union’s proposal is "covered by" NORD IV is without merit. The "covered by doctrine" is "bounded by the parties’ practice," and they have modified their contractual grievance procedure in the past in dealing with the very same topic, RIFs. This signifies that NORD IV was never intended as a bar to further negotiations.

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s proposal is outside the duty to bargain because it involves a subject that is covered by the parties’ master agreement. More specifically, Articles 41 through 43 of NORD IV contain the parties’ grievance procedure and arbitration provisions. Article 43, in particular, sets forth those subjects that are appropriate for expedited arbitration, and CTAP disputes are not included. The parties have already negotiated a bifurcated dispute resolution procedure for resolving all matters, including CTAP disputes, in Section VI of their Pre-RIF Agreement which essentially referred them to the NORD IV procedures, unless the National President of the Union files a grievance under the Agreement, in which case an expedited process would be followed. There is simply no need for yet another dispute resolution process. The Union is incorrect when it suggests that the fact the Employer opted to negotiate over a different process in the Pre-RIF Agreement from what exists in NORD IV now compels it to negotiate over an additional dispute resolution procedure. To the contrary, case law provides that while it has discretion to negotiate over matters covered by NORD IV if it chooses, the Employer is under no legal obligation to do so.(18)

CONCLUSIONS

    The Arbitrator declines to adopt the Union's Proposal on the merits. The Employer has urged that Articles 41 through 43 of NORD IV, establishing an expedited grievance procedure, cover the subject of the Union's proposals. The Employer also points to the expedited process in the Pre-RIF agreement, Amendment III. The stated intent of the Union’s proposal is to continue the Amendment III procedure. Under these circumstances, the parties can use the Amendment III procedure which they both seem to think is workable. Otherwise, the Union will have to seek a ruling from the FLRA that its proposal is not "covered by" existing agreements, the FLRA having indicated that such issues must be resolved in that forum, on a case-by-case basis.

15. ISSUE #25 (Union § 5 A)

Must the Employer provide the Union with any requested information, including flow charts of reorganized work, prior to the implementation of the RIF? Must a RIF be held in abeyance while the parties negotiate on a reorganization? Will this agreement contain language concerning the status quo ante remedy of a Union claim of a unilateral change in conditions of employment?

a. The Union’s Position

The Union proposes the following:

Prior to the issuance of Summary Statements or any other action outlined below that further implements the RIF, IRS will notify NTEU of the positions and locations of positions that will assume the work of the employees whose jobs are being reassigned or reorganized pursuant to the RIF. The notice will include decisions about any changes in critical elements or performance standards as well as other training and qualifications that will be needed to do the work. It will also include a flow chart showing what work moved from what employee and position to what new employee and positions. If the work of a noncontinuing position will no longer be done, that will be noted for each position. For example, it will detail how the work of each of the 59 noncontinuing positions in Columbia now scheduled for a RIF will be done by the 41 employees scheduled to be hired in Greensboro to do the work. The parties will complete bargaining over that prior to the implementation of the reorganization or any RIF that might precede the reorganization. In other words, no employee will be released from his or her competitive level until the negotiations over where his or her work will go is complete and the employee can make an informed choice about whether or not to follow the work. Any changes made unilaterally prior to these negotiations will be fully reversed and returned to the status quo, consistent with law.

In July 1996, the Employer notified the Union that it had "decided to undertake a reorganization and as a result of that reorganization" it determined it would need a RIF. Since that time, the Union has requested information on the detailed plans of the reorganization, and the Employer "officially has contended that it does not yet have these details." The idea that IRS does not have the requested information is "nonsensical" for a variety of reasons, and "totally without credibility." The Union needs the requested information "to protect employee rights to avoid changes in the amount or scope of work they are expected to do without negotiations," and to allow it to identify what, if any, negotiable impact issues will arise "as the RIF mutates into a reorganization overnight." Therefore, given the Union’s good reasons for having the data, "and without any good reason from the Employer why it should not," its proposal should be adopted. The Panel previously addressed a "similar proposal from a union and ordered it be adopted."(19) Moreover, in a more recent decision, the Arbitrator also "stated her agreement with the idea that the union should be given further information to ‘insure accuracy’."(20) In addition, the RIF should be held in abeyance until such time as the information is produced and negotiations are completed, and its "status quo ante remedy concept" also should be included, because "this reflects the policy of law." In this regard, a clear decision by the Arbitrator concerning "how the law will operate in this matter" would prevent future litigation before the FLRA "should the Employer foolishly believe that it can execute the RIF without bargaining over the reorganization that must be ready the morning after the RIF." It is to prevent the proliferation of cases before the FLRA on the same issue that the Union wishes to establish its right to the requested information as a matter of contract, even though it "probably can make an argument" that it is entitled to it under section 7114 of the Statute.

    With respect to the Employer’s nonnegotiability argument, the Arbitrator should reject it. Rather than imposing substantive restrictions on management’s right to lay off employees, under section 7106(a)(2)(A) of the Statute, the proposed wording is more analogous to asking for a cost study before a RIF or reorganization goes forward, which is negotiable under FLRA case.(21) Finally, concerning this issue, as well as Issues #24, #26, and #30, the Employer mischaracterized the operation of the Union’s right to negotiate as the Employer laid out its time projected lines in the arbitration hearing. In this connection, there is nothing in the Union’s proposals on these issues which would "stop the beginning of the RIF nor any of its middle phases."

    b. The Employer’s Position

    The Employer offers no counterproposal. The information the Union seeks is equivalent to conditioning the implementation of the RIF on the completion of negotiations over the Agency’s organizational structure after the RIF and, therefore, violates management’s right to lay off employees.(22) The Employer also has no obligation to negotiate over any changes in critical elements and standards and training before it conducts the RIF because these matters are covered by NORD IV. The parties are negotiating locally over movement of work issues, not because of the RIF but because of the IRS’ need to complete the reorganization, and "there is no need to hold the RIF in abeyance until those negotiations are completed." The Employer has already given the Union the best information available on a variety of RIF-related subjects, and the requirement that it provide a flow chart showing what work has moved from what employee and position to which new employee and position, and to negotiate over such matters, "is absolutely ridiculous." Among other things, it is impossible for the Employer to negotiate such "specifics" prior to the RIF and completion of the reorganization. In this connection, the Union’s interpretation that the Panel addressed a similar union proposal in White Sands and ordered its adoption "is far too expansive." Contrary to its view, the information the Agency has already provided the Union with respect to this issue is consistent with what the Panel ordered in that case.

    The fact that the FLRA Washington Regional Office dismissed a Union-filed ULP charge involving a section 7114 information request on May 20, 1997, which was substantially similar to the Union’s current proposal for information, supports the Employer’s contentions regarding the data it has provided, and that it has fulfilled its bargaining obligations to the fullest. Finally, the part of the Union’s proposal which would make the matter of an appropriate remedy for changes in conditions of employment without completing negotiations a matter of contract "is unreasonable." It is inconsistent with the Agency’s right to make unilateral changes in emergency situations, nor is a status quo ante remedy warranted in every case. In this regard, NORD IV permits the Union to file institutional grievances where it believes that the Employer has made illegal unilateral changes prior to fulfilling its statutory obligations. It is more appropriate to allow an arbitrator to apply the same criteria the FLRA would on a case-by-case basis than to saddle the Employer with a status quo ante remedy in every circumstance.

CONCLUSIONS

    Section 5 of the Union Final Offer proposal is titled, "Notification of the Final Details of the Reorganization and Bargaining." Its subparts are coextensive with Issues #25 through #30. The Union position reflected in these proposals is that because a reorganization is the reason for the RIF, it is impossible to separate the two processes. This is because the reorganization not only dictates the designation of certain positions as non-continuing in the new agency configuration, it also dictates what kind of jobs remain for employees in the reconfigured agency and the terms and conditions of those jobs. Because during the RIF process, employees released from their competitive level, or impacted by a bump or retreat action are required to make decisions about whether to seek, or accept, other positions, it is only fair, urges the Union, that they know what these positions entail (what the work, schedule, location, etc., will be), all matters subject to statutory bargaining obligations. The Union, therefore, conditions the Employer's ability to proceed to RIF on the completion of bargaining over the reorganization. On the exact point when the "proceeding" would be held up, Section 5 A is internally inconsistent, but the only reasonable reading, contrary to the Union's suggestion, is that the Employer cannot proceed even to issuance of summary notices until bargaining is completed and agreements are in place over post-reorganization working conditions since the summary notice information it requires includes reorganization-related information.

    The Employer's argument that the way its management rights are conditioned in this proposal violates the Statute, cannot be resolved by this Arbitrator. There is no FLRA case decision that addresses the issues raised here in a manner favorable to the negotiability of the proposal. In NTEU and NRC, the Authority found non-negotiable a proposal barring implementation of a RIF "until reorganization resulting from the RIF is finally determined including completion of any necessary negotiation with the Union." The FLRA's conclusion was that the proposal impermissibly conditioned management's right to layoff employees on the right to determine the organization. The Union's arguments to distinguish NTEU and NRC (i.e., the Union here is not actually asking for the "final" reorganization details) miss the point of how Carswell limits the Arbitrator's authority. The Union must do more than distinguish FLRA case law. It must provide the arbitrator with an FLRA ruling on closely similar facts and issues which establishes the negotiability of its proposal. (See the discussion under Issue 12, above.) The Union has not done that because, the Arbitrator believes, there is no such ruling. The cases cited which deal with contracting out cost studies are not on point. The OEA and DOD case cited as controlling (an older case than NTEU and NRC) did not present the FLRA with the conjunction of a reorganization and a RIF, that is, the FLRA did not consider the implications for a RIF of a requirement to bargain to impasse on the reorganization where management maintains that it cannot finally determine the reorganization until after the RIF. The Union has put forward a set of proposals of untested legality, and to proceed with those proposals, it has no choice but to take them before the FLRA for a determination of their negotiability. For the above reasons, the Arbitrator must decline to consider the Union's proposal.(23)

16. ISSUE #26 (Union § 5 B)

Will the agreement permit and contain a procedure the Union can use to negotiate over the numbers, types, and grades issues in the newly-reorganized offices once the RIF is implemented?

a. The Union’s Position

The Union proposes the following:

As part of those negotiations, the Union is free to submit proposals that address the numbers, types, and grades of employees that will be employed in the organizational subdivisions of the IRS after the RIF. This negotiations may include the use of any legal procedures that management used prior to the RIF. This bargaining right does not apply in those offices where management agrees to implement the transition plans that had previously been agreed to between the parties.

The proposed wording is merely intended to preserve the Union’s right to negotiate over section 7106(b)(1) matters once the parties commence negotiations "over the reorganization -- the triggering event for the RIF," negotiations which the Employer has successfully "evaded" up to this point. Such matters are too important to risk losing "because someone concluded that the ‘covered by’ defense removed the Union’s right to negotiate." Finally, the Union’s right to negotiate such matters "should be beyond dispute," as the Panel has addressed a similar issue and ruled, on the basis of FLRA precedent and the impact of Executive Order 12871, that they can be placed before it.(24)

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s proposal is outside the duty to bargain because it interferes with management’s right to determine its organization and lay off employees, and because section 7106(b)(1) matters are negotiable only at the election of the Agency. With regard to the latter point, "now that the parties are at impasse, the Agency has declined to negotiate over this proposal." Any contention on the part of the Union that Executive Order 12871 requires the Agency to go to impasse over it must be rejected because the Arbitrator "lacks authority to enforce the Executive Order." In this regard, the Executive Order "did not amend 5 U.S.C. section 7106(b)(1) and convert permissive subjects of bargaining into mandatory subjects." Moreover, Section 3 of the Executive Order explicitly states, among other things, that it was not intended "to create any right to administrative review," nor do third parties have a private right of action to enforce obligations imposed on executive branch officials by executive orders unless they have some specific foundation in Congressional action. Further, the argument that the Union is not attempting to enforce the Executive Order "but simply asserting that the President has exercised the Agency’s discretion" has already been rejected by the FLRA.(25) Finally, "it makes no sense to negotiate over numbers, types, and grades on such a grand scale" in an organization such as the IRS which is "constantly changing for reasons unrelated to the current reorganization."

CONCLUSIONS

    The Arbitrator must decline to consider the Union's proposal. Contrary to the Union's assertion, the Panel has not applied Carswell to act on a proposal dealing with "numbers, types, and grades" except where there was a factual basis for concluding that management had made an election to bargain, not the situation here. There is no FLRA authority for the Arbitrator to apply to force a management election. Independently, the Arbitrator and the Panel lack authority to enforce Executive Order 12871. Further, this section does not stand alone, being linked to Section 5 A (Issue #25) which the Arbitrator has declined to consider because of unresolved negotiability issues.

17. ISSUE #27 (Union § 5 C)

Union Statement of the Issue:

Under what conditions will any "directed reassignments" occur?

Employer Statement of the Issue:

Will this agreement amend the provisions of Article 15 of the parties’ master agreement? Further, will the Employer be prohibited from making any directed reassignments until negotiations concerning a RIF and reorganization are completed?

a. The Union’s Position

The Union proposes the following:

Any employee who is given a "directed reassignment" order as part of this reorganization will not be reassigned or ordered to make a decision about the reassignment until all the negotiations called for under the parties’ term agreement are completed. In any case, the negotiations called for by the term agreement prior to implementation will be completed prior to any directed reassignment, unless the parties agree that those negotiation obligations are satisfied by these negotiations. Moreover, none of these reassignments may be made until the bargaining mentioned in Subsection A above is complete so the employee can make an informed choice.

The parties’ term agreement requires the Employer to complete negotiations over directed reassignments "before there is any directed reassignment of employees involved in the RIF." Thus, its proposal is intended to avoid any conflict between the term agreement and the midterm RIF agreement, and to make clear that nothing in the RIF agreement authorizes a change in the obligations set forth in NORD IV. Preventing the Employer from making such assignments prior to the time of the reorganization also makes sense because it would avoid the unnecessary expenditure of "Government funds and other resources." This is because the reassigned employee may have the right to move to yet another position or "even back to his old job," depending on what the parties negotiate. The adoption of its proposal should not "result in a major delay." In this regard, because it is also proposing to expedite the negotiations (Issue #30), the Union "should not be held accountable for any delay" if the Employer is unwilling to agree to such a procedure. Regarding the Employer’s two nonnegotiability arguments, both should be rejected. Article 15 of NORD IV specifically preserves the Union’s right to negotiate over directed reassignments prior to their implementation, which indicates that "the parties specifically bar the application of the ‘covered by’ doctrine" to the subject. Moreover, its proposal merely "mirrors" the wording of the contract and the Statute. To the extent the Employer "complains" that the proposal requires it to complete bargaining before implementing any change involving a directed reassignment, the FLRA has specifically held that a union may negotiate over a proposal that conditions the exercise of a management right on the completion of bargaining.(26)

    b. The Employer’s Position

    The Employer has no counterproposal. What the Union proposes is covered by NORD IV, and also places substantive limitations on management’s rights to assign work and employees. In this regard, the parties have already negotiated a directed reassignment provision contained in Article 15 of NORD IV which clearly covers the situations proposed by the Union, and "the Agency has no obligation to negotiate another directed reassignment process with it." Furthermore, the part of the proposal which requires the Agency to delay reassignments until all of the adverse impact negotiations are completed is actually inconsistent with Article 15, as the "bargaining history surrounding" the pertinent section of that article shows that the Agency may reassign employees after the time periods specified therein, and then complete negotiations after implementation. In addition, the proposal is inconsistent with the Union’s proposal in Issue #29. It prohibits the Agency from making directed reassignments under Article 15 until after it completes negotiations over a number of matters raised in the Union’s proposal under Issue #25, while the proposal in Issue #29 prohibits the Agency from effecting an involuntary reassignment until the effective date of the RIF. Because it is unclear whether one of the proposals should take precedence over the other, or be read in combination, at the very least the Arbitrator should not impose them both.

    By requiring the Agency to complete negotiations over all those matters mentioned in the Union’s proposal on Issue #25, the proposal "places a significant and debilitating limitation" on its right to assign employees and, in turn, "may cause a severe disservice to employees." This is because the requirement to provide the Union with flow charts comparing the "old" and "future" organizations before it can conduct the RIF would prohibit the Agency from directly reassigning employees prior to the RIF. But the ability to reassign employees prior to the RIF, for example, by placing an "excess" employee into another position in another competitive area within the same commuting area, could completely eliminate the need for a RIF in the excess employee’s current competitive area. Under the Union’s proposal, the Agency would have to conduct the RIF and, perhaps, separate the excess employee, "a result which is hardly fair to either the Agency or to the employees."

CONCLUSIONS

    The Arbitrator declines to consider the Union's proposal. The last sentence of the proposal is linked to the Union's proposed Section 5 A which the Arbitrator has declined to consider due to questions about negotiability (Issue #25). With respect to the preceding sentences, the Employer has raised the argument that directed assignments are covered by Article 15 of the term agreement, obviating any duty to bargain the current proposal. The Union does not dispute the application of Article 15, asserting that its goal here is to make clear that the RIF agreement does not change the obligations that Article 15 imposes. The Arbitrator finds no need for such clarification, the IRS having committed itself in its arguments here to addressing directed assignment issues under the term agreement. The Union's proposal adds something to Article 15's stated requirements, however, which is a requirement that the impact-and-implementation bargaining required in that Article be completed prior to the reassignment. If directed reassignments are "covered by" Article 15 adding this requirement is inappropriate. Because the Panel's interpretation is that the FLRA reserves to itself "covered by" determinations, what cannot be avoided is the necessity of Union having this issue first addressed in that forum. In any case, having decided that the question of whether reorganization bargaining and decision-making can prevent the RIF from going forward is an issue for the FLRA, the Arbitrator does not find it advisable to consider the proposals here and in Issue #28 that really address the reorganization, not the RIF. The subsections of Section 5 are interrelated in such a way as to make severing the reorganization issues impossible.

18. ISSUE #28 (Union § 5 D; Employer § I G)

What procedures and negotiations, if any, will apply to the reassignment of an employee within a commuting area? Must negotiations be completed prior to implementation of a reorganization?

a. The Union’s Position

The Union proposes the following:

Any employee who is reassigned to another post-of-duty inside or outside her normal commuting area pursuant to the RIF will not be ordered to report until the parties have negotiated over the applicability of AWS and local flexiplace options to that newly assigned position. Additionally, the parties will negotiate over the implementation of a "telecommuting" program for these employees similar to the one that management has implemented for nonunit employees. Finally, the Union will be permitted to negotiate over where work will be done within the bounds of case law. All these negotiations will be complete prior to the implementation of any reorganization.

This proposal is designed to "integrate" negotiations over flexiplace, AWS, and other matters, required under NORD IV, "with the roll out of the RIF and reorganization." These matters are of great importance to employees leaving one job and moving into another, and should be addressed before the moves occur and their work lives are substantially disrupted. Again, the negotiations should not result in major delay, and the Employer can minimize the time involved by agreeing to the expedited negotiations procedure the Union is offering on Issue #30. Further, negotiations over telecommuting arrangements and where work is done would provide additional ways to "lessen the adverse impact" on employees affected by the RIF, and are consistent with various Presidential orders and actions supporting a family friendly workplace. Concerning the Employer’s nonnegotiability allegations: (1) it has misread the intent of the proposal, which "does nothing to interfere with what POD the position or employee is assigned to by the Agency," but merely preserves the Union’s contractual right to negotiate over flexiplace; (2) the subject of the proposal is not outside the duty to bargain under the "covered by" doctrine because the proposal "merely mirrors and implements in the context of the RIF the rights the parties have identified in the contract;" and (3) the phrase "within the bounds of law" preserves management’s right to determine "where the work will be done."

    b. The Employer’s Position

The Agency will comply with Article 23, sections 9 - 12 of NORD IV regarding flexiplace.

The parts of the Union’s proposal involving flexiplace and AWS are covered by Article 23 of NORD IV and also nonnegotiable because they interfere with management’s rights to determine its organization and to lay off employees. Under the terms of the proposed wording, an employee may never actually be required to report to a different post-of-duty since the reassignment would only be "on paper." Moreover, to the extent that its ambiguous wording addresses directed reassignments prior to the RIF, that subject is covered by Article 15 of NORD IV. On the other hand, if the proposal is directed to RIF assignments to other posts of duty, "it would prevent the Agency from fully effecting the RIF until the negotiations called for by the Union were completed." In this regard, it has the potential of "jeopardizing the bona fides of the RIF and subjecting the RIF to a reversal by a third party." If the current RIF bargaining is any indication, "negotiations could take a very long time," and provide certain employees with grounds for complaining that they were not properly bumped during the RIF process if other employees are still encumbering the same position while negotiations over flexiplace, AWS, or telecommuting are still ongoing.

    The portion of the proposal which would require negotiations over a "telecommuting program" to be conducted prior to the RIF or reorganization "is nothing more than a delay tactic." Telecommuting has nothing to do with the RIF, nor was the Union prevented from offering telecommuting proposals during the current negotiations. Finally, its proposal to negotiate over where the work will be performed "within the bounds of case law prior to the RIF and reorganization" should be rejected because the Union’s rights in this connection "are pretty much limited to such matters as on which floors of a building the work will be performed." The Agency’s entire RIF and reorganization should not be delayed "to negotiate over such minor subjects."

CONCLUSIONS

    For reasons stated with regard to Issues #25 and #27, the Arbitrator declines to consider the Union's proposal. Prior to this proposal being considered on its merits the FLRA must determine whether a proposal can require that impact-and-implementation bargaining concerning a reorganization be completed prior to effectuating a RIF. As the Union says in its prehearing brief, its purpose in this proposal is to "integrate" the two processes (RIF and reorganization) which is at the heart of the negotiability issue. In addition, NORD IV addresses AWS and flexiplace and the Employer acknowledges bargaining obligations over those subjects under the contract. To the extent that the Union is simply wanting to confirm the Employer's obligations under NORD IV, its language is unnecessary. Finally, as the Union has not opposed it (and it is unobjectionable on its face) the Employer proposal which states that it will follow language making plain a commitment to follow contractual terms on flexiplace is adopted.

19. ISSUE #29 (Union § 5 E)

Will involuntary reassignments be stayed until the completion of the RIF?

a. The Union’s Position

The Union proposes the following:

No employee who is involuntarily moved out of his or her competitive level or otherwise the victim of a RIF will be ordered to move prior to the completion of the RIF.

The adoption of its proposal is necessary to ensure that employees are not ordered to "leave" their competitive levels during the early rounds of the RIF reassignment process prior to its completion "throughout the office," and would prevent employees from suffering "the harm and hardships of moving" before it is certain that all of the moves are required. In this regard, employees are entitled to a certain number of days notice before they must leave their current positions and the Union seeks "to make that very clear." Its proposal is also modeled "on how the labor law would operate," i.e., preventing employees from being moved prior to the negotiated RIF execution date would help both parties to avoid grievances and unfair labor practice charges which eventually could result in "status quo ante or ‘retroactive effect’" orders.

    b. The Employer’s Position

    The Employer has no counterproposal. As it also stated in connection with Issue #27, the Union’s proposal is outside the duty to bargain because the subject it addresses is covered by Article 15 of NORD IV, and places substantive limitations on management’s rights to assign work and employees. In addition, its proposal under this issue, and the one under Issue #27, "are inconsistent with each other." It is also "unclear and makes no sense" because it only prevents the Agency from effecting involuntary reassignments when they are to different competitive levels. Thus, under the proposal an employee could be involuntarily reassigned to a position in the same competitive level at another post of duty 39 miles away, but the Agency would be prohibited from involuntarily reassigning the same employee to a position in a different competitive level, even though the position is "across the hall and in the same building." Beyond the fact that there is "very little logic" or purpose served by the proposal, it also would prevent the Agency from involuntarily reassigning any employee who is the "victim of a RIF." Because the parties would spend much of their time litigating the meaning of this ambiguous phrase, the adoption of the proposal would be counterproductive, and it should be rejected on its merits.

CONCLUSIONS

    The Arbitrator declines to adopt the Union's proposal on the merits. The meaning and import of this language, including the phrase "otherwise the victim of a RIF" is not at all clear and has not been elucidated by the Union. "Completion of the RIF" implies that no employee moves (by release from competitive level or by bump or retreat) until all employees move. After lengthy consideration of these proposals, there remain serious questions in the Arbitrator's mind as to whether this is workable. For instance, the Union never responded to the Employer's concern that an employee terminated because of a "bumping" action would have grounds to appeal the bona fides of the removal if no actual movement had occurred to displace the employee from his or her position. And how would the agency's work get done if a transfer of work had already occurred (and perhaps employees who formerly performed the work had departed through buy outs, retirement, voluntary reassignment, etc.) but employees could not be moved into new positions to perform the work? The Union implies that measures like telecommuting could take care of all contingencies, but did not establish that this would be feasible with regard to all, or most, of the specific positions involved in this RIF.

    Although the Arbitrator is resolving this issue on the merits, she notes that this provision is bound up with the issues concerning reorganization and Article 15 of NORD IV already discussed, issues that must be resolved by the FLRA.

20. ISSUE #30 (Union § 5 F)

What impasse process will be provided to the local parties to expeditiously resolve any negotiation disputes concerning topics raised in Section 5 A-E ?

a. The Union’s Position

The Union proposes the following:

The local parties will have no more than 45 days to negotiate over the above listed issues. If they are unable to reach agreement, even with assistance of the FMCS, their dispute will be referred to the national parties, who will then resolve it.

Because of "the Employer’s refusal to finalize plans for the reorganization," it is currently unclear whether the RIF will be delayed so that substantial bargaining over the reorganization can take place, or the two events can "be distinguished and clearly separated by a significant period of time." It is wise and benefits both parties, therefore, to expedite local bargaining created through NORD IV so that it is not permitted to "drag out" beyond 45 days. If local negotiators are unable to reach agreement during that time period, "the dispute would be transferred to the level of exclusive recognition where statutory processes and rights would control the progress of the bargaining."

    b. The Employer’s Position

    The Employer has no counterproposal. There is no need for the Union’s proposal because the Agency has no obligation to negotiate over (1) any of the proposals to which it refers, or (2) many of the issues, such as "numbers, types, and grades," and "telecommuting," etc., at the local level. With respect to the latter point, Article 47, Sections 2 and 4 of NORD IV provide that such negotiations will be at the National level. If the Union were "sincere" about reaching a comprehensive RIF agreement, rather than in delaying the RIF for as long as possible, it could have offered specific proposals on these matters instead of proposals requiring continued negotiations to be conducted and completed prior to the implementation of the RIF and reorganization.

CONCLUSIONS

    The Arbitrator declines to consider the Union's proposal since it is tied to adoption of the reorganization bargaining proposals elsewhere in Section 5, concerning which there are negotiability issues requiring resolution by the FLRA.

21. ISSUE #31

(a) Will the Union be given data it has listed to assess the adverse impact of the RIF on various protected classes as it moves through various stages? When will the data be provided? What will be the impact, if any, if the information is not timely provided? (Union § 6 A (minus last paragraph), B, and C; Employer § II B 1, para. 2)

a. The Union’s Position

The Union’s proposes the following:

Within 5 days of the implementation of this agreement, the Employer will provide to the Union the following data via a Lotus disk format:

1. A list of all employees who have been issued CES (or other "impact") letters. This list will show the race, national origin, gender, disability status (targeted and nontargeted), and age (+/-40) of these employees. It will further show this data by competitive area and level.

2. A list, based on the results of the "mock-RIF" showing those employees likely to be impacted by the RIF. This list will show the race, national origin, gender, disability status (targeted and nontargeted), and age (+/-40) of these employees. It will further show this data by competitive area and level. Finally, it will show the action taken against each impacted employee, i.e., terminated, downgraded, or remove from competitive level without termination or downgrade.

The data on each employee will be provided without names and in all other respects in a format similar to that provided to the union in the transmission of data in May 1997.

The Union will have the data at least 5 workdays before it has to make a choice between MSPB or grievance procedures or the date of that choice will be appropriately extended so that the Union has the data for at least 5 workdays before making the choice.

Simultaneous with the issuance of any specific Notice of a RIF, the Employer will provide to the Union the following data via a Lotus disk presentation:

1. A list showing those employees who received Notices of a RIF. This list will show the race, national origin, gender, disability status (targeted and nontargeted), and age (+/-40) of these employees. It will further show this data by competitive area and level. Finally, it will show the action taken against each impacted employee, i.e., terminated, downgraded, or remove from competitive level without termination or downgrade.

The data on each employee will be provided without names and in all other respects in a format similar to that provided to the Union in the transmission of data in May 1997.

Once the process of assigning employees has been completed, the Employer will provide to the Union the following data via a Lotus disk presentation.

1. A list showing those employees terminated, downgraded, removed from their competitive level without termination or downgrade or otherwise impacted. This list will show the race, national origin, gender, disability status (targeted and nontargeted), and age (+/-40) of these employees. It will further show this data by competitive area and level. Finally, it will show the action taken against each impacted employee, i.e., terminated, downgraded, or remove from competitive level without termination or downgrade.

The data on each employee will be provided without names and in all other respects in a format similar to that provided to the Union in the transmission of data in May 1997.

The data requested by the Union is necessary primarily so that it can determine whether it has "an actionable EEO case which will impact" its selection of either "the grievance-arbitration or MSPB route for any appeals." It has been concerned about the potential adverse impact of the RIF on protected classes since the "first moments of the negotiations," but was able to obtain previously requested data from the Employer only "under the written threat of a TRO." The Union’s preliminary analysis of this data showed that the RIF plan creates statistically significant evidence of inordinate adverse impact on disabled employees, women over 40, and Afro-American employees. For this reason, the Union should be given the additional data it is requesting "to track this impact through each stage of the RIF." Moreover, the Employer has already demonstrated that it can meet the proposed 5-day time period; whatever inconvenience the Employer would suffer is "outweighed by the importance of avoiding discriminatory results with this RIF."

    The Employer’s only argument for not providing such data during the various stages of the RIF has been on the basis of relevance. While the parties and "various courts" hold different positions regarding this legal issue, the Arbitrator "should not try to step in the middle of that judicial controversy" but "should endorse the full and open use of data, leaving it to the courts to decide later, if ever, what they consider to be relevant." The primary advantage of providing data throughout the various phases of the RIF is to permit the Union more time to "begin an investigation of the other facts behind the statistics" if it finds adverse statistical impact, something which the courts generally require if a case of discrimination is to be made. Moreover, it is hoped that by continually demonstrating that the RIF would have an inordinate impact on protected classes someone within IRS management will modify the RIF plans to avoid or minimize the impact. Finally, the penalty it proposes if the data is not provided in a timely manner is "mild," and "directly linked to the harm" the Union would suffer.

    b. The Employer’s Position

    The Employer proposes the following:

The Agency will conduct an analysis at the conclusion of the RIF regarding the impact of the RIF on women, minorities, and handicapped employees. This analysis will be shared with NTEU upon completion.

The Union’s proposal that the Agency provide it with certain "RNO data" is "intricately related" to Amendment Three of the Pre-RIF Agreement, its two-step RIF notice proposal under Issue #66, and its proposal under Issue #31(c). Since the Arbitrator should reject the Union’s proposals on the latter two issues, "she should likewise reject the Union’s various requests for RNO data." In addition, this information may be requested under section 7114 of the Statute, so it is unnecessary to include the Union’s proposed wording, "with all its problems and pitfalls," in this RIF Agreement.

CONCLUSIONS

    The Arbitrator adopts the Union's proposal. The Employer does not maintain that the information to be produced is unavailable or too burdensome, and concedes that it could be the subject of a proper information request under Section 7114 of the Statute. The essential difference between the Union and Employer proposals on RNO data concerns timing. The Arbitrator can see value in the Union having access to impact data at the RIF notice point, rather than at the end point of the RIF. There is an opportunity to propose measures that would alleviate any adverse impact that might appear in the data. The Employer's proposal could be read to bar information requests even under Section 7114, prior to the time it provides in its language. The Arbitrator notes her understanding that the concept of "impacted," used in the Union proposal, is the meaning given to that term by the parties in their pre-RIF agreements.

(b) Will the Union be permitted to submit a comment to IRS addressing how potential adverse impact of the RIF on a protected class may be minimized or avoided? Will the IRS be prohibited from issuing any Summary of Statements or Notices of RIF letters until the Union has had an opportunity to comment? (Union § 6 A, last paragraph)

a. The Union’s Position

The Union proposes the following:

The Union will be given up to 10 workdays after it has received the data in useable format to submit a comment to IRS which addresses how the potential adverse impact of the RIF on a protected class may be minimized or avoided. IRS will not issue any Summary Statements or Notice of RIF letters until the Union has had an opportunity to comment.

Requiring the parties to explore ways to redesign the RIF to avoid or minimize adverse impact on protected classes "flows from the requirement of the Uniform Guidelines on Employee Selection Procedures," a Government wide regulation found at 29 C.F.R. 1607.3(B). Such an exchange would not be a negotiation, nor would the Employer be bound by any of the Union’s suggestions. Nevertheless, the Employer’s reactions are likely to be affected by its knowledge that the media and Congress might ask "why it has chosen to ignore recommendations that would fix any discrimination problem." Sending IRS a message that "it is free to refuse to meet with the Union about this topic," on the other hand, would set up a situation where its only alternative may be to use the media, Congress, and other groups "outside of NTEU" founded on protected class status, to get its points across. This is "hardly . . . the best approach."

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s proposed wording is linked to the portion of its proposal under Issue #31(a) concerning the data it is requesting from the Agency, and would require the cessation of the processing of RIF or summary statement notices if the CES and impact information reveals a disparate impact. Since the Union’s proposal under Issue #31(a) should be rejected, so should this one. Moreover, the Union does not need a specific proposal to engage the Agency in a dialogue should the information reveal a disparate impact because it is "always free" to discuss alternative means of minimizing the adverse impact on protected classes.

CONCLUSIONS

    The Arbitrator adopts the Union's proposal. Ten days for commenting on the RNO data provided is a modest delay in the RIF timeline. As indicated with respect to Issue #31(a) the Arbitrator sees value in early discussions between the parties should information appear in the RNO data suggesting an adverse impact.

(c) If the data show disparate impact on one or more protected classes at the time the Employer issues Notice of RIF letters, will the Employer be required to simultaneously solicit employee interest in moving to other competitive areas if they are provided reasonably similar positions and moving expenses? If so, will data showing which employees would be willing to move be provided by the Employer to the Union? (Union § 6 D)

a. The Union’s Position

The Union proposes the following:

If the data shows there is a disparate impact on one or more protected classes at the time the Employer issues Notice of RIF letters, IRS will simultaneously solicit employee interest in moving to any other competitive area. The solicitation will ask all impacted employees if they would be willing to move to another competitive area if IRS provided a reasonably similar position and moving expenses. The data will be collected from each impacted employee and associated with other RIF-related computer files so that NTEU can receive a list by race, national origin, gender, disability status (targeted and nontargeted), and age (+/-40) which shows which employees would be willing to move among those who are adversely impacted.

Its proposed wording would help the parties deal "with the possibility that the data will show a statistically adverse impact on one or more protected classes," and is yet another instance where a Union proposal creates a "win-win" situation. Although the Employer would be under no obligation to do so, if the responses of employees in protected classes showed that many "could be retained if IRS allowed them to move to vacant positions that would otherwise go unfilled during the RIF, we would expect IRS to react accordingly." In this regard, it is "totally irresponsible" for the Employer to maintain "an ostrich-like position" on these civil rights issues and not assess any damage until it is done and people are "out the door." With respect to the Employer’s reference to the Supreme Court’s Adarand affirmative action decision, that holding does not apply in the circumstances which pertain here because: (1) the Union is soliciting interest in moving from everyone in the RIF, not just from protected class members, and (2) the proposal "does not carry with it any automatic benefit or personnel action." Finally, granting it access to the information it is requesting is reasonable because it is entitled to the data anyway, and it would prevent the Union from having "to arrange for some other outside source" to intervene on its behalf.

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s proposal, on the other hand, is "unclear, outside the duty to bargain, contrary to law, and unnecessary." If the "impacted employees" whose interest is to be solicited includes any employee reassigned or downgraded, as opposed to those who have been RIF-separated, "it makes little practical sense to solicit their interest in and move them to another position elsewhere in the Agency." The proposal also violates management’s rights to assign employees and make selections by requiring it to fill vacancies and completely eliminating its discretion not to do so, nor is it an appropriate arrangement.(27) Further, even if the proposal only applies to vacancies the Employer intends to fill, it probably would be contrary to law because the selection of protected class employees for vacancies is, in effect, "an affirmative action program."(28) And finally, because of Amendment Three and the Pre-RIF Agreement, all employees, including those in protected classes, have been given ample opportunity to move to continuing vacancies elsewhere in the IRS at the Employer"s expense. There would be "little benefit" in providing employees with yet another opportunity to move.

CONCLUSIONS

    The Employer's non-negotiability allegations are not well founded given the plain wording of the proposal which is consistent with the Union's explanation that the proposal does not mandate assignment of employees but only requires the gathering of information that might be useful in any efforts that might be taken to respond to data showing disparate impact on protected classes of employees. The Employer raises a warning flag about any measures that would give protected class employees preferential treatment in ameliorative efforts. Nothing in the proposal as written does that (the language calls for soliciting the views of all impacted employees) although questions in that regard could be relevant at any later stage when the information is used. Beyond these legal arguments, the Employer's objection to the Union's proposal is that it is pointless because any employee willing to move will have already done so through the various pre-RIF processes. The Arbitrator's concern is a different one, namely, that the solicitation will suggest to employees that they have rights of consideration or assignment apart from what is provided for in the pre-RIF and RIF agreement.

    A proper use of the information to be gathered under this proposal that the Arbitrator can understand(29) is to better enable the Employer and Union to assist impacted employees through the existing avenues by providing them with definitive knowledge of who is willing to move, and where. On that basis, the Arbitrator adopts the Union's proposal, but with the understanding that employees solicited under this language will be advised in plain language of the purpose of gathering the information, and of the fact that no right of assignment is given by this contract language, and that placement opportunities are those otherwise provided in the RIF and re-RIF agreements.

22. ISSUE #32 (Union § 7A; Employer § II A)

What rules will apply to the definition of a commuting area and "separate administration" for purposes of defining competitive areas?

a. The Union’s Position

The Union proposes the following:

Competitive Areas. The Employer will establish the competitive areas and will provide a copy of this information to the Union. In so doing, it will use commuting areas that are uniform with other commuting area decisions it has made, e.g., to establish reimbursement rules for daily travel outside a commuting area to reassign employees for other purposes, etc. If the competitive area is something other than nationwide for any and all RIF actions, the Employer agrees it will be defined consistent with all laws and that a separate "administration" is defined, consistent with MSPB precedent, generally as that portion of the organization under separate mission requirements, appropriations, and personnel rules, policies, and formal procedures relating to promotion, performance, discipline and related personnel matters.

Given the legal restrictions on its right to negotiate over the subject of competitive areas, the Union seeks clear wording in the contract regarding some of the rules that apply in their selection. In this regard, there is evidence that the parties will disagree over how "uniformly" the Employer has drawn the boundaries. Instead of waiting until the Employer has committed itself to designating its competitive areas, the adoption of its proposal would highlight in this agreement the regulatory obligation under 5 C.F.R. 351.201© "that all RIF decisions must be uniformly applied." Similarly, since the term "separate competitive area," which is found in the current regulations, "is hardly a commonly used one in the Federal workplace," it would be helpful to all concerned if the administrators of the agreement are made "aware of the OPM interpretation," as set forth in relevant MSPB case law. The Arbitrator should give no credence to Employer allegations that its wording is nonnegotiable because the proposal has been revised "to paraphrase the holdings of MSPB as to what constitutes a separate administrative area."

    b. The Employer’s Position

    The Employer proposes the following:

Competitive Areas. The Employer will establish the competitive areas and will provide a copy of this information to the Union.

To the extent that definitions contained in the RIF Agreement differ from those in the Government wide RIF regulations, it would violate the regulations. This is why the RIF Agreement should not include definitions of competitive area and commuting area other than those already contained in the regulations. The regulations, however, do not define "separate administration." That definition has been developed through MSPB case law.(30) The definition of "activity under separate administration" supplied by the Union, on the other hand, is "incorrect," and an attempt to get through the "back door" what it cannot negotiate directly, a nationwide competitive area. This is because the Union’s definition is narrower than required by the regulation, and many of the Agency’s personnel programs regarding things like discipline, performance management, and promotions are national in scope. Unlike the term "separate administration," the RIF regulations do provide a definition of "local commuting area," so the RIF Agreement should not contain a separate and different definition. The Employer would have "little protection" when defending a RIF appeal if it argued that it defined commuting area consistent with the RIF Agreement, rather than the RIF regulations.

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal. Although the Union maintains it is doing no more than restating controlling OPM and MSPB standards for establishing competitive areas, in fact its language is not a complete or accurate description of regulatory standards and is therefore misleading. It is preferable to adopt the Employer language which, though uninformative as to the criteria for competitive areas, is accurate.

23. ISSUE #33 (Union § 7 B)

What adjustments, if any, will be made where there is more than one appointing office within a competitive area?

a. The Union’s Position

The Union proposes the following:

If the Employer selects a competitive area that is co-terminus with commuting areas and appointing office, all employees in those offices who are selected for RIF in the first round will be made aware of vacancies in other IRS appointing offices within the commuting area by a formal written statement that lists all vacancies in the commuting area. This will be done at the time the employee receives his Notice of RIF. The notice will also contain an explanation of how the employee could apply for or otherwise compete to fill the vacancy.

The proposal is intended to address a problem with the way in which the Employer has chosen to draw its competitive areas. In certain parts of the country there are different appointing offices within the same commuting area, "sometimes in the same building or a few subway stops" from one another. Thus, due to the "callousness with which IRS is designing this RIF to avoid any inconvenience to management," employees may be forced to leave Government service even though there may be vacant positions available within the same commuting area. The disruption the Employer contended would occur if it designed its competitive areas to avoid such an outcome has never been substantiated, nor has it rebutted the Union’s argument that it would be far more disruptive for the Agency to hire a new employee off the streets when a RIF’d experienced employee was only a short distance away. Requiring the Employer to inform RIF’d employees in areas with overlapping competitive areas of any vacancies and how to apply for them is "the least IRS can do to make up for what employees see as a nonsensical drawing of boundaries that caused them or co-workers to lose jobs they otherwise would not have."

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s proposal "makes little sense" because it provides a benefit only to employees released in Round 1 of the RIF, who are not necessarily the employees who will eventually be separated, "while leaving employees who will be RIF-separated with nothing." In addition, because the Union cannot legally make the Employer fill vacancies, the proposal simply constitutes a notice requirement which provides "no real benefit" to the designated employees. Next, if an agency determines to fill vacancies during a RIF, 5 C.F.R. 351.201(b) requires that it do so using the bump and retreat process. The Agency intends to fill vacancies within the competitive area undergoing a RIF during Round 2 as bump and retreat assignments, so "it will not be announcing such vacancies." As a consequence, it will do little good to inform Round 1 employees of these vacancies if they cannot compete for them. Finally, any vacancies that remain after Rounds 1 and 2 of RIF competition will be offered to eligible employees "in lieu of separation." In fact, the Union has agreed (in Issue #61) to the Employer’s proposal in this area which, consistent with MSPB case law, specifies that such offers must be made in retention order. Thus, requiring the Agency to inform only Round 1 employees of the vacancies would be "illusory" since they cannot apply or compete for positions which must be assigned in retention order.

CONCLUSIONS

    The Arbitrator declines to adopt the Union's proposal on the merits. This is another effort by the Union to counter the effects of the competitive areas drawn by the Employer. (See discussion under Issue 12.) The problem is that the proposal is meaningless and worse, creates false hopes and confusion because it suggests to employees that they can achieve selection or assignment to vacancies during the RIF process through some avenue not prescribed in the RIF process when that is not the case. OPM rules are clear that during a RIF, vacancies can only be filled pursuant to RIF rules. That is, vacancies have to be kept as bumping or retreating opportunities for employees in the competitive area of the vacancy who are released from their competitive level. Beyond that, if the vacancy is not filled through bump or retreat, the parties here have agreed to a provision for assignments in lieu of separation which makes any vacancies within a commuting area (which might include several competitive areas) available to employees slated for RIF separation (if they qualify under the terms of that agreement.) As a consequence, vacancies will not be filled at the time pinpointed in this proposal by employees outside of the competitive area where the vacancy is located and ineligible for bump or retreat rights. This proposal raises the concerns express by the Arbitrator on Issue #10 about Union proposals that on the surface appear beneficial but carry a potential to worsen the RIF's impact for some employees that has not been adequately addressed.

24. ISSUE #34 (Union § 7 C; Employer § II B 1)

How shall the parties define competitive levels?

a. The Union’s Position

The Union proposes the following:

Competitive Levels. Employees compete for retention in their competitive levels during the first round of RIF completion. A competitive level consists of all positions in a competitive area which are in the same grade (or occupational level) and classification series.

On this issue, "neither party seems to have the most technically accurate language on the table." The Union prefers its formulation to the Employer’s because "it allows for the more detailed issues that IRS includes from the current RIF regulations to be determined by the regulations themselves." This is important because final modifications to OPM’s current regulations "are due out any day now," and if they are issued before an agreement is signed and conflict with what IRS has proposed, the parties will have problems determining "what words should be used for this portion of the agreement."

    b. The Employer’s Position

    The Employer proposes the following:

Competitive Levels. Employees compete for retention in their competitive levels during the first round of RIF competition. A competitive level consists of all positions in a competitive area which are in the same grade (or occupational level) and classification series and which are similar enough in duties, qualification requirements, pay schedules, and working conditions so that the incumbent of one position could successfully perform the critical elements of any other position upon entry into it, without undue interruption as defined as in 5 C.F.R. § 351.203 and without any loss of productivity beyond that normally expected in the orientation of any new but fully qualified employee.

Unlike the Union’s proposal, the Employer’s includes the highlighted wording which is "the same as that contained in the RIF regulations." By excluding this wording, the Union’s definition of competitive level, in effect, would prohibit the Agency from breaking down a job series and grade into more than one competitive level and, for example, would require a Spanish-speaking GS-11 Taxpayer Service Representative (TSR) to be in the same competitive level as a non-Spanish-speaking GS-11 TSR, even if the non-Spanish-speaking employee could not perform the duties of the Spanish-speaking position without undue interruption, as defined in the regulations. Consequently, placing too many different positions into the same competitive level increases the chances that appeals of RIF actions may be sustained on the basis that an employee was improperly displaced by another employee who should not have been placed within his or her competitive level.(31) Conversely, adoption of the Employer’s proposal would decrease the likelihood of reversal of RIF actions on such grounds. Finally, at the arbitration hearing the Union suggested that the Agency could get away with having only one competitive level per series "if it sufficiently manipulated the personnel system." When asked to justify its position, it responded that doing so "would eliminate its need to explain the peculiarities of the competitive level system "to unit employees." This is "hardly grounds" for imposing its "legally deficient proposal."

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal. As with the previous issue, the Union's proposal omits critical content in the governing regulations defining competitive levels and creates the erroneous impression that grade and series alone are determinative, which is not the case. The Arbitrator is cautious about an implicit Union assumption that it best serves employees to tilt the contract language in favor of broader competitive levels, noting the MSPB RIF appeal cases where employees for whom a narrow competitive level was more beneficial to their job security raised valid claims against their agencies if RIF rules were not observed in drawing the competitive levels.

25. ISSUE #37 (Union § 7 E, para. 1, sent. 1; Employer § II D)

Will this agreement provide specific language from Government wide regulations describing how performance will be credited or shall the Government wide regulations merely be referenced?

a. The Union’s Position

The Union proposes the following:

Credit for Performance. An employee’s entitlement to additional service credit for performance as described in section D herein shall be based on Government wide rules and regulations as well as law, with any conflicts resolved appropriately.

Because OPM has proposed substantial revisions in how performance credits are to be assigned to determine RIF retention scores, adoption of the Employer’s proposal, which incorporates the requirements of the current regulations, could result in an apparent conflict between the contract and any revised regulations dealing with this subject. While experienced Federal sector labor relations practitioners would understand that if the revised regulations are issued before the RIF agreement is implemented, the IRS wording becomes unenforceable, under section 7116(a)(7) of the Statute, its proposal would permit the regulations to change without giving rise to such conflicts. This is particularly important if the Union chooses to take appeals to MSPB rather than the grievance procedure because employees and their representatives, who may include private attorneys less versed in the Federal sector, would not "have to work their way through an apparent conflict between the contract and the regulations." Finally, as with Issues #41, #42, and #43, the Union’s proposal should be adopted because allowing the most current regulations to control permits "the best and most current public policy to operate," and avoids the potential for more litigation between the parties if new OPM regulations are "prescribed" before the Arbitrator imposes the decision or the parties get around to actually signing and approving it.

    b. The Employer’s Position

    The Employer proposes the following:

Credit for Performance. An employee’s entitlement to additional service credit for performance as described in section D herein shall be based on the employee’s three most recent performance ratings of record received during the 4-year period prior to the cut-off date described below in section 1.

Its proposal is simply a restatement of the requirements contained in 5 C.F.R. 351.504(b)(1) regarding the matter of performance credit. Although the Union’s proposal is not "incorrect," it is also "not very informative to the average employee." The Employer’s proposal should be adopted, therefore, because it provides employees with substantive information on how many and which performance appraisals are used to determine retention standing, and would not require them to "scamper" to find the applicable Code of Federal Regulations provisions. Moreover, the Agency’s personnel system and automated RIF software are "not prepared to make a swift adjustment to accommodate" the new RIF regulations recently proposed by OPM. Adoption of its proposal, therefore, permits it to take advantage of section 7117(a)(7) of the Statute. Employees would suffer little harm if the current regulations are incorporated into this agreement because NORD IV expires on June 30, 1998, and the parties will be negotiating RIF during term negotiations, and be required to incorporate the new regulations into the RIF article. The Agency, on the other hand, "would be unable to conduct the current RIF if the new regulations are published before RIF notices were issued."

CONCLUSIONS

    Both parties, and the Arbitrator, have been placed in a difficult position by what, we assume, is the imminent adoption by OPM of revised RIF rules that change certain aspects of how performance is credited for retention standing purposes. The Union's proposal here is designed to take advantage of the revised rules which provide additional flexibility to agencies in some areas. The Employer, on the other hand, locks in current rules to avoid the delays that would be created if OPM's new rules were issued before the RIF is over, and the parties were governed by the Union's language. It would have to stop the RIF, in process, and redo the retention registers according to the new OPM rules, a task it presents as complex given its computer programs, and as possibly incorporating bargaining with the Union. Because of the uncertainty about the timing of the OPM revisions, and the long pendency of this RIF, the Arbitrator is persuaded that the Employer's proposal on this and several issues following (#37, #41, # 42, and #43) is the preferable approach for bringing this RIF to conclusion in the event that OPM does not act before this agreement becomes effective.(32) The Employer's proposal on this issue is, therefore, adopted.

26. ISSUE #38 (Union § 7 E, para. 1, sent. 2)

Will this agreement make clear that the Employer is not released from its obligation to provide employees appraisals in accord with all the terms of the master agreement?

    a. The Union’s Position

The Union proposes the following:

Nothing in this agreement releases the Employer from any contractual obligation to provide an appraisal for each of the last 3 years for unit employees prior to the RIF.

Its proposal is necessitated by the parties’ differing interpretations of regulatory requirements, specifically, OPM regulations prohibiting retroactive employee performance evaluations. Under the Employer’s interpretation, "IRS managers are better off not doing any appraisals because once IRS enters a RIF situation the Agency is immune from challenge based on an error in the appraisal." This allows it to bypass several regulatory obligations that otherwise would limit its flexibility in this area. The Union intends to challenge the Employer’s reading of the regulations "at an appropriate time." Meanwhile, however, its proposal should be adopted to make it clear that nothing in the midterm RIF negotiations alters whatever NORD IV requires in the way of annual appraisals. In this regard, although "it is beyond dispute" that the Arbitrator is without authority to alter the term agreement, the inclusion of its wording would clarify this in the RIF Agreement. Finally, because its proposal "does not impose any obligations on the Employer," i.e., it does not require that retroactive appraisals be done, the Employer’s nonnegotiability arguments are without foundation.

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s proposal, however, is nonnegotiable because it is contrary to Federal law and Government wide regulations. In effect, it would require the Agency to provide retroactive appraisals to any employee who did not receive three annual performance ratings during the previous 4-year period. Because this would prevent employees from receiving "presumed" Fully Successful ratings for any missing appraisals, it directly violates the requirements of the RIF regulations at 5 C.F.R. 351.504. Moreover, "there is no authority permitting agencies to retroactively assign a rating of record when none was originally given," and it is highly problematic to assume that the Agency could recreate an appraisal, particularly if the employee’s supervisor is no longer employed by the Agency. Because it would have been more appropriate for employees with missing appraisals to have protested at the time they were due, imposing the proposal also would amount to permitting employees to file untimely grievances. Significantly, the Union’s explanation of what its proposal means is inconsistent with what it actually states, and the Arbitrator should not impose a proposal based on a statement of intent that does not comport with the proposal’s wording. Finally, rejection of the Union’s proposal for the reasons stated would not prevent it from raising the argument, during an appeal of a particular RIF action, that the Agency violated NORD IV by failing to provide timely appraisals. Both parties could then debate the merits of the Union’s position, but this should occur only after the RIF Agreement is imposed on them.

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal for the reasons provided concerning Issue #37. The Employer proposal states the current, controlling requirements of OPM regulations for crediting missing ratings. The Union's proposal is unnecessary to insure the viability of existing contract provisions concerning performance appraisals. The Employer agrees that in the proper forum the Union remains free to urge its position has to how those contractual obligations interface with the RIF rules.

27. ISSUE #39 (Union § 7 E, para. 2, sent. 1; Employer § II D 1)

What shall be the cut-off date for the use of appraisals in determining retention standing?

a. The Union’s Position

The Union’s proposes the following:

In accordance with regulation, a cut-off date of 90 days prior to issuance of the specific notices will be used. Performance appraisals due after that date will not be used for retention determination purposes.

Under its "win-win" proposal, the Employer would be required to consider appraisals completed as recently as 90 days before RIF notices are issued. Its adoption would not risk delaying the RIF, since the most recent evaluation year closed in June and the Employer’s own regulations require managers to complete and have them on the data base within 2 weeks of the end of the period. More recent appraisals should be used because: (1) according to data provided by OPM, in comparison with other agencies, the evaluation system negotiated by the parties "is highly effective at distinguishing different levels of performance," and the demonstrated advantages of the NTEU-IRS system "should not be lost due to the operation of a rule of convenience for a few managers;" (2) job changes over the years often make such appraisals the only evaluation they have in their current position; (3) IRS has many missing appraisals, which means that using as many of this year’s evaluations as available for RIF purposes would permit "presumed" Fully Successful scores to be replaced by actual scores; and (4) it would reduce confusion in the bargaining unit. With respect to the latter point, adopting the Employer’s proposal could lead to "absurd situations," such as employees who have just received cash performance awards having high evaluation scores ignored in the RIF calculation. Its proposal also is inconsistent with its final offer on Issue #44, where it makes clear that it is willing to accept updates to employee qualifications until the 30th day before the issuance of RIF notices.

    b. The Employer’s Position

    The Employer proposes the following:

In accordance with 5 C.F.R. 351.504(b)(2), a cutoff date of 180 days prior to the issuance of RIF notices will be used. Performance ratings received after that date may not be used for retention determination purposes. Early appraisals will not be accepted.

The purpose of the RIF regulations in question is to provide an adequate amount of time for an agency to determine an employee’s retention standing so that it does not have to make constant adjustments based on the daily receipt of appraisals. In this connection, the Employer’s proposal for a 180-day cut-off period (as opposed to 90 days), and to base the date on the time the appraisal is received (rather than due), is more reasonable than the Union’s. The longer period would reduce the risk of error by permitting the Agency an adequate amount of time to verify its employees’ performance records, and provide rating officials with less of an opportunity to manipulate evaluations so as to affect retention standing. Tying the cut-off date to when appraisals are received is more workable because it would provide a specific point in time for the Agency adequately to determine retention standing. Under the Union’s proposal, on the other hand, the Employer theoretically would have to accept appraisals right up to the date it issues RIF notices as long as they were due before the cut-off date, "and defeats the very purpose for permitting agencies to establish a cut-off date. Finally, because the Union is silent on the issue of whether early appraisals would be accepted, "the Agency assumes that the Union accepts" its proposal on this portion of the issue.

CONCLUSIONS

    The Arbitrator adopts the Union's proposal. The Arbitrator believes it comports with the public policy that favors consideration of performance in such actions as RIFs that employees have their recent performance considered for retention standing credit, which is more likely under the 90-day time period. As to the difference in the proposals between "received" and "due," the Arbitrator appreciates the Union's argument that it is fair to count appraisals "due," not received, to avoid a manager's delay or some other factor outside of the employee's control preventing consideration of recent performance that could improve an employee's RIF standing. The difficulty is that the OPM RIF regulations are clear that in order to be used for retention standing credit, appraisals must be "on record," that is, in the receipt of the agency officials preparing the retention registers. ("To be creditable for RIF purposes, ratings must have been issued to the employee, with all appropriate reviews and signatures, and must also be on record." OPM Module 3, Unit A, Section 15 (9).) In allowing agencies to establish a cutoff date in this context, OPM states that "[a]fter the cutoff date, no new annual performance ratings will be put on record and used for RIF purposes." Id. at section 15(3). At the same time the regulation states: "Agencies must ensure that ratings are issued in accordance with established schedules and forwarded to the appropriate office on a timely basis." Id. at section 15(9)(b). There are IRS and Treasury policies prescribing time limits for managers to complete performance appraisals and enter them into the computer system.

    In light of the above, the Arbitrator adopts the Union proposal but notes that by its terms and the Arbitrator's intention, it does not directly conflict with OPM rules and that it must be applied consistent with the other provisions of this agreement concerning credit for performance.

ENDNOTES

18.Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. Federal Labor Relations Authority, 962 F.2d 48 (D.C. Cir. 1992).

19.Department of the Army, White Sands Missile Range, White Sands Missile Range, New Mexico and Local 2049, National Federation of Federal Employees, Case No. 93 FSIP 105 (June 29, 1993) (White Sands), Panel Release No. 346.

20.Department of the Navy, United States Marine Corps, Marine Corps Air Station, Cherry Point, North Carolina and Professional Airways Systems Specialists, Case No. 95 FSIP 25 (June 26, 1995), Panel Release No. 375.

21.National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566, 594 (1988) (NRC).

22.NRC, 31 FLRA 566, 615-616 (1988).

23.The Union in its posthearing brief invited the Arbitrator to sever any problematic portions of Sections 5 A, B and F and impose the remaining language but made no suggestion as to what to keep. The only part of these proposals that does not implicate the negotiability issues that the Arbitrator has decided are for the FLRA, is the first sentence in 5 A concerning information to be provided to the Union. The Employer maintains that it has informed the Union about the "positions and locations of positions that will assume the work of the employees whose jobs are being reassigned or reorganized pursuant to the RIF," and the FLRA General Counsel dismissed an unfair labor practice complaint alleging a failure by the IRS to provide reorganization information to the Union. Based on the above, the Arbitrator finds no purpose served in severing this single sentence.

24.The Union relies on Department of Veterans Affairs, Palo Alto Health Care System, Palo Alto, California and Local 2110, American Federation of Government Employees, AFL-CIO, Case No. 96 FSIP 1 (March 20, 1996), Panel Release No. 385, to support its contention.

25.U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, Case No. WA-CA-40743 at 11-12 (July 9, 1996) (ALJ Opinion).

26.Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 740-41 (1987).

27.The Employer cites numerous FLRA cases to support its nonnegotiability argument, among them, Bremerton Metal Trades Council and Naval Supply Center Puget Sound, 32 FLRA 643 (1988).

28.Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097 (1995).

29.Providing political ammunition against the RIF is another use the Union freely admits it will make of the information, if disparate impact is shown by RNO data.

30.The Employer has provided numerous MSPB cases to establish its position.

31.The Employer cites Marcinowsky v. General Services Administration, 35 MSPR 6 (1987) as an example where this occurred.

32.The Union raises the specter of further litigation if OPM issues its new regulations prior to this Award or the effective date of the RIF agreement. The Arbitrator takes issue with the scenario presented. The Agency concedes in its post-hearing brief that if OPM's new rules issue prior to this RIF agreement becoming effective, they will govern and will require application of the new rules requiring crediting performance for retention standing. In that eventuality, there would be no need to return to the Panel. The parties could agree to the necessary conforming changes in contract language which would not be extensive.

(. . . continued) Issues 40 through 57

In the Matter of

DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

WASHINGTON, D.C.

and

NATIONAL TREASURY EMPLOYEES UNION

Case No. 97 FSIP 31

 

Issues 40 through 57 follow:

 

28. ISSUE #40 (Union § 7 E, para. 2, sent. 3-5; Employer § II D 2)

Which appraisal forms, or other evidence, may be used to calculate performance-based retention credit and under what circumstances?

a. The Union’s Position

The Union proposes the following:

Where there are conflicting appraisals, the IRS form 6850 will be considered over either the IRS Forms 3860 or 9857, absent evidence that one is not valid. An appraisal with the signature of at least one manager may be used to establish RIF Adjusted SCD’s. In the absence of any of these the employer will consider any evidence that management assigned an appraisal of a certain performance level, e.g., documentation of a performance award based on a performance appraisal.

Its proposal should be adopted mainly because the Employer’s is "technically flawed." First, using only IRS forms in considering performance appraisals, as required by a strict reading of the Employer’s wording, would prevent it from considering appraisals from an employee’s time at another agency, "an indisputable violation of Government wide regulation." Employees, therefore, could challenge retention registers through the grievance procedure if IRS in fact fails to consider such ratings and have a "great chance of being sustained before an arbitrator;" it also would put the Union in a precarious position of determining whether to sign an agreement where a potential "duty to fairly represent" ULP hangs over its head if it does anything to undermine employee rights. Second, it would not permit the use of a "surrogate document," such as a management prepared narrative in support of a performance award indicating the award was based on an overall rating of "Exceeds Fully Successful," even if the actual appraisal was lost by the IRS. Third, the goal of the proposal appears to be to "free IRS of any liability when a manager fails or refuses to prepare an appraisal that is due the employee." In this regard, if management prepares an appraisal after its due date, it may be used for award or promotion purposes, but not for retention purposes. This would be considered "insane" by the average employee, and "seriously undermine employee credibility in the system." The strength of the Union’s proposal, on the other hand, is that it avoids these defects and is consistent with the OPM regulations on this issue "which supports inclusion of appraisal data." Thus, the Employer’s argument that the proposal violates Government wide regulations is invalid because "IRS misconstrues the regulation on which it relies."

    b. The Employer’s Position

    The Employer proposes the following:

Only the following performance records may be used for the purpose of computing additional RIF service credit:

a. A Form 6850, "Job Element Appraisal" containing at least one managerial signature;

b. A Form 3860 or 9857, containing at least one managerial signature;

c. If a signed Form 6850, 3860, and/or completed Form 9857 exist for the same rating cycle and the ratings differ, the summary rating on the Form 6850 will be used;

d. If no Form 6850, 3860, or 9857 with one managerial signature exists, the rating of a presumed "Fully Successful."

e. Forms 6850, 3860, or 9857 with one managerial signature which have been timely prepared and signed are acceptable regardless of the time the ratings were input into TIMIS.

f. To be creditable, ratings much be completed within 30 days of the end of the rating cycle. For purposes of the RIF about which the Service notified the Union on July 29, 1996, a performance rating/appraisal, as defined above, which was completed before August 16, 1996, and more than 90 days after the end of a rating cycle will be accepted for the RIF. However, any appraisal prepared after August 16, 1996, which was prepared more than 90 days after the end of the rating cycle will not be accepted for the RIF.

The last sentence of the Union’s proposal is nonnegotiable because it is contrary to Federal law and Government wide regulations. In this regard, 5 C.F.R. 351.504(b)(1) specifies that only "annual performance ratings of record" may be used in determining retention standing, while 5 C.F.R. 351.504(b)(3) requires that, to be creditable, a rating must have been issued to the employee with appropriate reviews and signatures and be available for use by the office responsible for establishing retention registers. The Union’s proposed wording, however, would require management to accept any other evidence that the Agency may have assigned a specific rating level to the employee, such as documentation of a performance award. Not only do the regulations prohibit the Agency from considering such evidence, but the fact that an employee received a performance award does not necessarily mean that the employee actually received a performance rating. On the merits, adoption of the Union’s proposal would present an "unmanageable" administrative burden for the Agency as it attempts to evaluate a "flood of submissions" to ensure that its records are correct. Finally, if the Union were really concerned about protecting IRS employees who previously received ratings from other agencies, rather than ratings received by Agency employees from the Agency, "it would have been more specific in its proposal."

CONCLUSIONS

    The Arbitrator adopts the Union's proposal without the last sentence (beginning, "In the absence of....") which appears to be non-negotiable as inconsistent with OPM regulations (both current and proposed) about what is to be done to credit performance when there is no appraisal on record. The Employer's proposal is also inconsistent with OPM regulations by failing to permit consideration of ratings from other agencies.(33) The Employer also imposes (in subpart f) an additional cutoff that could conceivably operate to exclude certain performance appraisals without having discussed or demonstrated any need for this measure.

29. ISSUE #41 (Union § 7 E 1; Employer § II D)

What process will be used to determine how to award performance-based retention credit to those employees who may have been evaluated using something other than a five-level rating system?

a. The Union’s Position

The Union proposes the following:

If there are any local offices that did not issue a five-level evaluation during the last 3 years, IRS will so notify NTEU and the parties will negotiate over all appropriate matters prior to the implementation of a RIF for employees in their competitive level and area. In no case will the fact that a pass-fail evaluation was done relieve the Employer of any obligation it had under the contract to provide a five-level evaluation.

Its wording is intended to cure a problem resulting from the establishment of pass-fail performance evaluation systems in the Helena District (Montana), which was targeted as a Reinvention Lab Project, and in some other areas where local parties adopted such systems even though NORD IV requires five-level appraisals. Now that IRS is proposing a RIF, affected employees in these areas "see themselves as damaged and want to claim the full rights of the term agreement that was binding on them." While its proposal calls for negotiations which it believes would lead to a consensus solution, the Employer’s "ignores this dispute and simply says that it will proceed forward as if it does not exist." Although negotiations might put the RIF of Montana employees on a different timetable than all other employees, this is preferable to requiring them to "appeal and pursue retroactive correction." In addition, the Employer’s proposal is drawn from current RIF regulations which OPM has proposed to change to permit employers more flexibility in converting pass-fail to five-level rating systems, an approach which the Union would like the opportunity to apply to the "Montana problem." Selection by the Arbitrator of the Employer’s proposal would bar the use of any new authority OPM gives agencies. With respect to the Employer’s nonnegotiability allegations, its proposal merely preserves its right "to argue that other binding documents, such as other contracts or regulations, do require the development of appraisals."

    b. The Employer’s Position

    The Employer proposes the following:

Any employee rated under any system other than a five-level system must receive the following rating:

Pass/Fail System: Pass = Fully Successful

Fail = Unacceptable

3-Level System: Level 5 = Outstanding

Level 3 = Fully Successful

Level 1 = Unacceptable

Narrative = Fully Successful

NA/NR = Presumed Fully Successful

The last sentence of the Union’s proposed wording is nonnegotiable because it is contrary to Federal law and Government wide regulations. Under 5 C.F.R. 430.208(d)(2), employees in a pass-fail system may only receive ratings of 1 (unacceptable performance) or 3 (fully successful). Under the section on performance credit, 5 C.F.R. 351.504(d), therefore, employees with a rating of 3 must be granted 12 years of credit, the amount the regulations specify must be credited for a Fully Successful rating. Further, "there is no authority within the RIF or the performance management regulations which permits an agency to change or convert the ratings received under a pass-fail system to a five-level system." The proposal also is outside the duty to bargain because it would determine the conditions of employment of non-unit employees and would prevent the Agency from applying the RIF regulations uniformly and consistently. In this regard, other than Union stewards, the only employees within the IRS receiving pass-fail ratings were managers and members of the unit in the Helena Reinvention Lab. If the Union were concerned with more than simply delaying the RIF, it could have offered proposals to address their interests during negotiations. Instead, it chose to proffer a proposal which would only result in "further protracted negotiations;" it should not be "rewarded" for its failure to provide specific proposals and given yet another opportunity to delay the RIF in the guise of negotiations. Moreover, as indicated above, there is no need for further negotiations over these matters, as they are already covered by the RIF regulations.

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal, referring the parties to the rationale concerning OPM's proposed revisions to its RIF rules contained in the conclusion on Issue #37. The Arbitrator is without authority to adopt the Union's proposal as currently written in the face of the negotiability argument based on an apparent direct conflict with current OPM rules. The Arbitrator would note that even if OPM's changes are not issued before this agreement takes effect, if those changes permit more flexibility than presently allowed for dealing with the apparent hardship situation in Helena, the parties would apparently be free to choose to negotiate another crediting plan for this small number of employees, depending upon where the Employer is in the RIF process.

30. ISSUE #42 (Union § 7 E 2; and Employer § II D 2)

What are the minimum requirements for crediting additional service credit based on appraisals?

a. The Union’s Position

The Union proposes the following:

To be creditable for purposes of computing additional service credit, a rating need only meet the minimum standards necessary for determination of whether it is proper.

The Employer’s proposal, which would incorporate OPM regulations into the agreement on this topic, "is likely to lead to implementation problems" because the wording is unclear. For example, where an employee’s evaluation has been used as the basis for a promotion action or cash incentive award, it would seem to have been accepted as an official document and should be used in the RIF. Since this may have occurred without all "appropriate signatures" affixed, as required under the OPM regulations, such appraisals would not be usable for RIF purposes. This is yet another situation where the average employee will be unable to understand why an appraisal which was good enough to support a cash award "is not considered in the decision to retain him." The Union’s proposal, therefore, would require management to interpret the regulations so that such appraisals are included in service credit calculations, rather than leaving the employee with a presumed Fully Successful rating. Put another way, it mandates that the Employer give employees "the benefit of the doubt" when considering appraisals so this, and other similar problems, can be avoided.

    b. The Employer’s Position

    The Employer proposes the following:

To be creditable for purposes of computing additional service credit, a rating must have been issued to the employee, with all appropriate reviews and signatures, and must also be on record (e.g., the rating is available for use in establishing registers).

Its proposal merely restates the applicable RIF regulation (at 5 C.F.R. 351.504(b)(3)) "in its entirety." The Union’s proposal, on the other hand, is "entirely unclear" when it suggests that ratings need only meet the "minimum standards" necessary for determining whether they are proper. It should be rejected because, without a definition of "minimum standards," the parties would undoubtedly be embroiled in disagreements over how the proposal should be applied.

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal which states the "minimum" required by current OPM regulations; as the Arbitrator reads them. the proposed OPM revisions do not change.

31. ISSUE #43 (Union § 7 E 3; Employer § II D 3 and 4)

Shall the contract spell out the rules for determining service credit, including for those employees missing appraisals, or shall it merely reference the Government wide rules?

    a. The Union’s Position

    The Union proposes the following:

Service credit for employees who do not have useable performance ratings of record received during the appropriate period prior to the cutoff date shall be determined pursuant to Government wide regulations.

Its wording would ensure that recently proposed revisions to OPM’s RIF regulations, which potentially increase the use of merit-based data in determining service credit, are incorporated into the agreement. Under the Employer’s proposal, on the other hand, if the agreement is implemented before the new regulations are finalized, many of the "shortcomings" in the current system that the new regulations are intended to correct would not be addressed. It would be "odd" if the parties were restricted to using a system that recently has been redesigned after 40 years "only to have an employer decide that it is going to block the correction that OPM says will promote greater merit considerations."

    b. The Employer’s Position

    The Employer proposes the following:

Service credit for employees who do not have three actual performance ratings of record during the 4-year period prior to the cutoff date described in Section II, D, 1. shall be determined as follows:

a. An employee who has not received an annual performance rating or record shall receive credit for performance on the basis of three assumed ratings of "Fully Successful."

b. An employee who has received at least one but fewer than three previous annual performance ratings of record shall receive credit for performance on the basis of actual rating(s) received and one or two assumed rating(s) of "Fully Successful", whichever is needed to credit the employee with three ratings.

The additional service credit an employee receives for performance shall be expressed in additional years of service and shall consist of the mathematical average of the employee’s last three (actual and/or assumed) annual performance ratings of record computed on the following basis:

a. Twenty additional years of service for each performance rating of "Outstanding" or equivalent.

b. Sixteen additional years of service for each performance rating of "Distinguished" or equivalent.

c. Twelve additional years of service for each performance rating of "Fully Successful" or equivalent.

Once again, its proposal merely restates the regulatory requirements in 5 C.F.R. 351.504(c), this time with respect to how employees with missing ratings must receive performance credit. The Union’s proposal, in contrast, is "not invalid or incorrect," but does not do a very good job of informing employees about the RIF process and their RIF rights. Telling them that such matters will be determined in accordance with Government wide regulations is an inferior approach when they could be given details and substantive information.

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal, referring the parties to the rationale concerning current versus revised OPM regulations set forth in the conclusions on Issue #37.

32. ISSUE #44 (Union § 7 E 5; Employer § II D 6 b)

Shall there be a cut-off date for updating qualifications and, if so, what shall the date be?

a. The Union’s Position

The Union proposes the following:

Employees will be encouraged to update their qualifications through the submission of updated SF 171's merit program questionnaires, and/or OF 612's. Submissions of updated materials will be accepted at any time and the RIF calculations adjusted accordingly.

Applicable regulations set no cut-off date for the revising of employee qualifications, yet the Employer’s proposal seeks to establish one. Besides the fact that its proposal conflicts with MSPB case law,(34) it is "obviously" in the interest of employees to keep qualifications statements current because doing so may lead to more opportunities for assignment to more desirable positions during "RIF adjustments." It is also in the interest of management to be guided by the latest and best information, to the extent it has some control over the assignments. The Employer’s arbitrary cut-off date would prevent the consideration of new developments, such as an employee who completes a degree or certification requirement, or completes enough time-in-grade to be promoted to the next career level, simply because they occur within the 90-day period before the RIF is finalized (i.e., the Employer’s proposed 60-day notice period and the 30 days prior to that time). Such new qualifications should be considered "if at all possible," particularly where they can influence something as serious as the position to which an employee will be assigned for the foreseeable future, and where the Employer has been unable to establish the need for a cut-off date.

    b. The Employer’s Position

    The Employer proposes the following:

Employees will be encouraged to update their qualifications through the submission of updated SF 171's, merit program questionnaires, and/or OF 612's. Submissions of updated materials will be accepted no later than 30 calendar days prior to the proposed date for issuance of RIF notices.

The parties previously reached agreement on this matter in their Pre-RIF Agreement, and established the same 30-day cut-off period stated in this proposal. The Union’s current proposal "simply reflects its desire to delay the RIF." During the course of a RIF, employers have the discretion to set a uniform cut-off date for updating qualifications, and once such a date is established, they do not have to consider evidence received after the deadline in determining an employee’s qualifications for assignment to other positions. If a date is not established or uniformly enforced, however, it is "required to accept updated qualifications at any time prior to an employee’s release for his or her competitive level."(35) This would be "extremely burdensome and unsettling." The "trickling in" of additional information would make it difficult "to ever issue RIF notices;" once issued, they would have to be "constantly revised." Finally, it is a time-consuming process to determine all the positions within a competitive area for which the employee may have reassignment rights because an agency may have to consider dozens of positions for each employee. In addition to the reasons provided above, the Employer’s proposal should be adopted because a minimum of 30 days is needed "to successfully complete this qualification determination prior to the issuance of RIF notices."

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal. The Union proposal by its terms permits an employee to update qualifications any time, which has to be read as meaning up to the date the RIF is completed by the movement/separation of employees. The potential for disrupting the RIF and requiring reruns of bumping, with the consequent "spill-down" effect, is not hard to see. It is plain that throughout the pre-RIF stage, employees have been encouraged to examine their files and update their qualifications. Presumably, the Union is therefore concerned about last minute changes (new credentials achieved). The Employer stated at the hearing that career ladder promotions would automatically be taken into account by the Employer, not being obviated by this language. Granted, this does not cover other situations. On balance, however, the breadth of the Union's proposal makes the weighing of benefit and burden tilt in the Employer's favor.

    The MSPB sanctions agencies "setting a specific and uniformly enforced cutoff date for the submission of updated qualifications." Gregg v. Dept of Navy, 71 MSPR 127 (1996) (Gregg). The case of McMahon v. Dept of Army, 21 MSPR 159 (1984) (McMahon), relied upon by the Union, interpreted a provision of the Federal Personnel Manual, still extant at that time. Given the dates of the cases, the abolishment of the FPM and the absence of a corresponding restriction in current OPM RIF rules, the Arbitrator considers Gregg to be current law and to pose no bar to adoption of the Employer's proposal. (It is noted even so, that the FPM provision cited in McMahon did not require updating of qualifications "at any time" but only up to release from the competitive level, more limited than the Union's proposal.)

33. ISSUE #45 (Union § 7 F)

Will the Agency be required to waive qualifications for vacancies and, if so, what standards will apply?

a. The Union’s Position

The Union proposes the following:

When the Agency determines to fill vacancies during the RIF process in order to facilitate placement of affected employees at the same or lower grade, the Agency will waive all qualifications, within its authority to waive, to the maximum extent feasible when the employee has the capability, adaptability, and special skills needed to satisfactorily perform the duties and responsibilities of the job and when it can be reasonably determined that the employee could perform the duties of the position within 90 days.

While the Employer could insist that employees meet "every letter of the OPM qualifications" for assigning employees to other positions in the agency, it also has the right to waive them, at least to some extent. During negotiations, the Employer had even tentatively agreed to do so. The Employer should be ordered to live up to its tentative agreement to waive minimum qualification standards because: (1) it would avoid the considerable expenses associated with failing to fill a job during a RIF with an on-board employee; (2) the criteria proposed by the Union protect management from having to place employees into positions they are unable to perform; (3) the Employer has failed to provide legitimate reasons for not doing so; (4) the parties have agreed to the use of qualification waivers in connection with one of the Employer’s other proposals; and (5) the Employer has "unilaterally granted similar waivers in recent situations that do not even involve a RIF." Overall, then, adoption of the Union’s proposal would produce another "win-win" situation where the Employer gains more output for its salary dollar and more at-risk employees are retained by the Agency.

    b. The Employer’s Position

    The Employer has no counterproposal. It opposes the Union’s proposal that it exercise its discretion under the RIF regulations and waive qualifications for all vacancies "because it is much too expansive." When the Agency’s reorganization and downsizing efforts are completed, its organization will be operating with a reduced work force, and will need to ensure that those employees who remain are fully qualified and capable of performing their assigned duties. Adoption of the Union’s proposal could result in the placing of relatively unqualified employees in critical positions, and put employees at risk of later removal actions based on poor performance. The Employer has already agreed to waive qualification standards when making offers to employees affected by the RIF in lieu of separation. Waiving qualification standards only for employees who otherwise would be separated strikes an appropriate balance between placing employees and meeting mission requirements. Moreover, because the vacancies remaining after the RIF process is complete will most likely be below the journeyman level, employees who are retained through the in-lieu-of-separation offer would not be expected to achieve full performance immediately.

CONCLUSIONS

    The Arbitrator adopts the Union's proposal. The proposal contains language that is responsive to the concerns raised by the Employer and which can reasonably be expected to prevent the "worst case" scenarios it offered in its arguments. The Union's proposal clearly is a means of ameliorating the impact of the RIF on employees, a major concern of both parties, and the Employer has offered no concrete impediment to it.

34. ISSUE #46 (Union § 8 A, 1-7; Employer § II D 6.a., sent. 1)

What will be included in a summary notice which employees will be provided prior to the issuance of the Notice of a RIF?

a. The Union’s Position

The Union proposes the following:

The Employer will provide each employee in each competitive area who is at or below the highest grade position abolished with a statement showing the following:

1. the Agency offices in that competitive area

2. to the extent the IRS asserts that there is more than one competitive level in a series, it will notify all employees in that series of the definition and distinguishing characteristics of the various levels in their series, the minimum qualifications for each level, what levels they are considered to be in and based on what facts, the competitive level of all other employees in their series and in their appointing office

3. the separate ratings and dates (years) for each of the four most recent appraisals considered (missing appraisals will be so indicated)

4. their tenure group

5. their preference eligible status

6. their unadjusted and adjusted RIF SCD, and

7. the positions to which the employee will be allowed to bump and retreat.

At the heart of its proposal on this issue is "openness and accountability." While the parties have agreed that the Employer would provide employees with summary statements prior to the time formal Notices of RIF are distributed, management has refused to include (at least) Union-proposed items 1, 2a, 2b, 6, and 7. The Employer has had this information "for months," and it should be released to "impacted employees" for a number of reasons. First, any errors in the information could be identified and corrected early. This is particularly important due to the errors that were "repeatedly" discovered throughout early runs of the data occurring in the preparation period for the RIF. Second, because IRS has never run a RIF before, providing employees the requested information would be helpful, among other ways, by leading them "to make some decisions early that they might postpone otherwise, e.g., request early retirement, etc." Finally, the Employer "has never offered a good reason" for denying them the information, and early disclosure would avoid the need to provide it later when employees "seek ways to get it one way or the other" in connection with various RIF appeal processes.

    b. The Employer’s Position

    The Employer proposes the following:

The Employer will provide employees in a competitive area in which a RIF is anticipated with a summary of relevant information concerning their own tenure group, veteran’s preference, length of service, and performance ratings utilized in determining their competitive standing.

It is proposing that employees receive the same summary statement information that the parties agreed to in their Pre-RIF Agreement. The purpose for this was to permit employees to review and verify the information which determines their retention standing. The Union is now proposing a second "much more burdensome" process than the one contained in the Pre-RIF Agreement, which should be rejected because it is "overly expansive and unreasonable." In this regard, the Employer would have to provide all employees in a competitive area who are at or below the highest graded position the information indicated, even though "the majority of these employees will not even be impacted by the RIF," and would have no need for it. It also "makes little sense" to inform employees of all the positions for which they may qualify because they may have no actual assignment rights to those positions, yet this is what the Union is demanding. The part of its proposal requiring that each employee be informed of all the distinguishing characteristics of the various competitive levels within that series, etc., "would be nearly impossible to accomplish, as the Agency has no data base from which to download the information." Thus, each summary statement would have to be researched and prepared individually. Since some of the information is based on the knowledge and expertise of the Agency’s classifiers, it "cannot be readily translated into written form." The proposal’s requirement that each employee be provided with data based on her or his appointing office and classification series also would be "enormously burdensome and time consuming," as would its requirement that each employee be informed of all the positions to which the employee can bump or retreat. Given the fact that employees who are somehow wrongly impacted have post-RIF appeal rights, it is "completely unreasonable" to expect the Agency to undergo the "arduous process" proposed by the Union when the majority of employees will not be affected by the RIF.

    The Union’s proposal is also unnecessary, as the parties "have already worked out what appears to be a compromise." In this regard, the Agency has agreed to meet with each employee who received a CES or impact letter to discuss the RIF process, and other matters specific to the employee. Finally, it has been the Agency’s experience, at least with respect to adverse action appeals, that no matter what information employees receive prior to separation, they request the same information again during discovery. Therefore, the Union’s argument that adoption of its proposal would permit employees to point out inconsistencies in the summary statement information and reduce the burden and scope of discovery during post-RIF appeals is "highly suspect."

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal. Contrary to the Union's assertion, the Employer has insistently offered reasons for concluding that the Union's proposal is burdensome beyond what can be justified by its ostensible purpose. The information described in items one and two on the Union's list is not retrievable from the automated data system and would have to be manually documented or extracted, in the instance of the second item, using more than one source. This burden might be reasonable if the Union's proposal was focused on employees likely to be impacted by the RIF, since the Employer would presumably need to be prepared with this documentation for this group of employees and there would be a direct benefit to the employees. But the Union's proposal requires extensive, manually derived competitive level information, and identification of bump and retreat opportunities, for a much wider group that includes many employees not in line to be reached by the RIF. That burden cannot be justified by the benefit created.

    According to Union hearing exhibit 21, the Employer has agreed in writing that any employee receiving a CES notice as a result of the mock RIF will be given the opportunity to an individual session with a manager or personnelist to discuss the specific circumstances surrounding the employee's standing on the retention register. The letter setting out this agreement states that "[m]anagement is in agreement that employees should be afforded the opportunity to receive the appropriate information to make informed career decisions," which certainly suggests that the opportunity to receive the information will come before the decision is necessary (Union hearing exhibit 21). Also, under the Employer proposal (IIB1) adopted in the following section of this Award (Issue #47), employees will be advised of their competitive level, the Union will be given the Competitive Level Catalogs to assist in advising employees, and employees, with their representatives, are entitled to meet with management for an explanation of their competitive level assignment. Thus, declining to adopt the Union proposal does not leave employees with a "need to know" without avenues for finding out the basis of the decisions having an impact on them.

35. ISSUE #47 (Union § 8 A, para. 2; Employer § II D 6.a., minus sent.1, and § II B 1, para. 1, last two sent.)

Union Statement of the Issue:

What form of due process will the employees be provided in order to respond to the information in the summary statement?

Employer Statement of the Issue:

What process will the employees be provided in order to challenge information in the summary statement?

a. The Union’s Position

The Union proposes the following:

This statement will be provided to the employee no less than 45 days prior to the issuance of the specific RIF notice. Upon receipt of this statement or summary notice, the employee may present an oral or written reply within 15 calendar days. Employees will be given a reasonable amount of official time, normally 4 hours, to meet with their representative and prepare a reply. Within 30 calendar days of the reply, the Employer will issue a final written decision regarding the challenge. The final decision will address the factor(s) claimed to be erroneous and state the reasons or grounds for the decision. It will also describe the employees’ right to also file a classification appeal to challenge this issue. The procedures used to deliver the oral and written reply will be the same as those used for oral and written replies to proposed discipline as described in the parties’ term agreements.

Its wording should be adopted because it imposes "some minor form of due process protections for RIF’d employees," protections which are required when "taking" their property or jobs. Because the Union is likely to seek an injunction against the RIF if the Arbitrator fails to provide "any form of due process," its adoption would also be "wise" by "protecting the IRS and the Government from whatever harm flows from a court order to stay and/or restart the RIF." It also helps the Employer "ensure that the data it is using are correct," a necessity given the many errors which were uncovered during the early data collection process. Its proposal for challenging the data and related conclusions is "a mirror of the disciplinary oral reply process" already very familiar to the IRS. Moreover, adoption of the Employer’s proposal, which would deny employees an explanation regarding any errors the employee might have found in the original summary statement, could result in unnecessary costs to both employees and the Government if the employee hires a private attorney to challenge this issue at MSPB only to find that "the Agency had documents the employee did not." Because the FLRA has held that a due process right exists in connection with disciplinary actions, adoption of the Employer’s proposal also would "raise the idea" that "another entity of the FLRA" holds that it does not attach to a termination. In this regard, the Union urges the Arbitrator to take note of an MSPB decision in reaching a conclusion on this issue, which states: "A man is going to lose his job, his means of support. At such times it is not unreasonable that he ask his superiors to exercise care and use every available and reasonable means open to secure a just and honorable decision."(36)

    The Employer’s proposal also violates the due process clause of the Constitution. In this regard, "the courts have consistently held that -- except in truly extraordinary circumstances -- the due process clause requires notice and an opportunity to respond before an individual is deprived of a significant property interest." In a RIF situation, the taking of a Federal employee’s position is a denial of property triggering Constitutional protections. The "root requirement" of the due process clause is that an individual is entitled to a hearing prior to being deprived of a significant property interest. As just pointed out, the Employer’s proposal gives the generally lower-graded employees who will be affected by the RIF no guarantee that rejected challenges to the accuracy of the data would be explained. Finally, review of a recent Supreme Court ruling shows that although it declined to expand the concept of due process to emergency suspensions, "it reaffirmed when it is necessary to protect terminated public employees and a RIF situation seems to meet all those criteria." The Court also observed that for a termination, "the only meaningful opportunity to invoke the discretion of the decision maker is likely to be before the termination takes effect."

    b. The Employer’s Position

    The Employer proposes the following:

At the same time, employees will be provided access to their OPFs and EPFs to enable them to verify or correct the summary within 15 working days of receipt. (However, this entitlement to the employee’s file will in no way diminish the employee’s right to receive the files sooner if requested under another authority.) Employees challenging any information contained within the notice will have 15 calendar days to submit evidence to support their challenge; however they are free to submit a challenge at any time under the law or contract, as appropriate. After updating, new summary notices will be sent to employees who have requested changes before a retention register is issued. Employees will be given a reasonable amount of administrative time to meet with their Union representatives to review their OPFs and EPFs and to discuss the accuracy of the data.

Each employee who receives a RIF notice will be told their competitive level and NTEU Chapters will be provided with Competitive Level Catalogs to make available to employees. Employees and their representatives may meet with management or its representatives for explanations as to why the employee is in a specific competitive level.

The process it proposes for allowing employees to review their OPFs and EPFs to verify the information contained in the Agency’s proposed summary statement, and to challenge it by submitting evidence, is the same as that "negotiated and agreed to by the parties in their pre-RIF Agreement;" this verification process, in fact, has already been applied twice. In comparison, the Union’s proposed process "is akin to that required in adverse action proceedings," and includes, among other things, a requirement that the Agency provide a final decision in writing regarding any employee oral or written challenges to the information contained in the summary statements. Its adoption would be "unnecessary" and "overly burdensome" to the Agency, given that it would delay the RIF "until sometime in the next fiscal year" because some 18,000 bargaining-unit employees would be subject to it. In addition, the Union’s "5th Amendment" argument is "flawed." Even assuming that employees are entitled to some form of pre-termination due process, its proposal is "overly broad" since it applies equally to employees facing separation and those unaffected by the RIF. More significantly, the courts have consistently ruled that neither Government wide RIF regulations nor the 5th Amendment entitle employees facing RIF-separation to any pre-termination right to reply to the proposed RIF. All that is required is that employees be given pre-termination notice and an opportunity to respond, and "adequate post-termination relief," requirements with which the Employer’s proposal is fully consistent. Finally, because the Union is likely to appeal the Arbitrator’s Opinion and Decision on Constitutional grounds even if its own proposal is adopted, "little heed" should be paid to the Union’s due process assertions.

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal. Looking at the merits, the oral reply process outlined in Union section 8A makes little sense when the summary notice language being ordered herein is not the Union's overly-broad alternative, but the more simple summary in Employer IID6a which sets out tenure group, veteran's preference, length of service, and performance ratings used in crediting performance. Under the Employer proposal, the employee has 15 days to challenge information in the summary notice, and given the type of information that it is, limiting employees to written evidence is reasonable. Employees are also given administrative time to review their files and consult with the Union. A separate section (Employer IIB1, grouped in this same issue), ensures that employees receiving a RIF notice will be informed of their competitive level assignment and given the opportunity to meet with management to learn the basis for that assignment, which gives employees a pre-termination opportunity to review the competitive level determination.

    Beyond the merits, the Union urges the Arbitrator to adopt its proposal to provide a form of due process that it believes is Constitutionally mandated. This action, it submits, would obviate the need for a court challenge to establish such a right. Issues of "first impression" raising the consistency of bargaining proposals with legal mandates (which includes the Constitution) are not given to Federal sector interest arbitrators to decide. Government wide RIF regulations do not now include, nor have they ever included to the Arbitrator's knowledge, the kind of pre-termination due process that the Union argues is mandated and there is no case law for the Arbitrator to apply which establishes that right in a RIF, which is the only apposite case.

36. ISSUE #48 (Union § 8 A, para. 2, sent. 3; Employer § II D 6)

How much official time or admin. leave will be provided to employees to clarify their records?

a. The Union’s Position

The Union proposes the following:

Employees will be given a reasonable amount of official time, normally 4 hours, to meet with their representative and prepare a reply.

By providing a benchmark of 4 hours for what would constitute a reasonable amount of administrative time for employees to review their records, disputes over the matter should be minimized. Under the Employer’s proposed wording, however, there could be "several hundred disputes over what amount of time is reasonable" because the parties have never experienced this exact situation before. Arbitrators could then award retroactive administrative time (and associated salaries) to employees who are already off the rolls, an "unfortunate situation." Four hours was selected by the Union because NORD IV provides the same approach to preparing employee rebuttals or challenges to performance appraisals, and it has been working well in that context.

    b. The Employer’s Position

    The Employer proposes the following:

Employees will be given a reasonable amount of administrative time to meet with their Union representatives to review their OPFs and EPFs and to discuss the accuracy of the data.

Because of the linkage between the parties’ proposals on this issue, and the previous issue regarding summary statements and the ensuing process for challenging the information contained in them, regardless of whose position the Arbitrator adopts, both should be imposed as a package. Accordingly, if the Arbitrator selects the Union’s proposal on the previous issue, the Employer would accept the Union’s proposal on this issue as well. On the other hand, if the Arbitrator imposes the Employer’s proposal on the previous issue, she should likewise adopt its proposal on this issue.

CONCLUSIONS

    The Arbitrator adopts the Union's proposal. Eliminating one potential subject of dispute between these parties seems worthwhile. However, it is suggested that the parties conform the language to the Employer proposal adopted in Issue #48 for the sake of clarity.

37. ISSUE #50 (Union § 8 B; Employer § II B 1, second to last sentence, and § II B 3)

What access shall the Union have to information about competitive levels and how employees are distributed across them, and when shall it be provided?

a. The Union’s Position

The Union proposes the following:

The Union will be provided competitive level information showing all the levels within each series, the definition and distinguishing characteristics of the various levels in their series, the minimum qualifications for each level, all employees in that appointing office considered to be in each level and based on what documents, e.g., position descriptions, critical elements, etc. This information will be given to the Union at least 5 days prior to the distribution of similar information to the employees pursuant to subsection A above.

Although the Employer has provided it with several revisions of its catalogue of competitive levels, most of the information requested in the Union’s proposal is not contained within it. In this regard, all of the requested information went into their determination of competitive levels, and providing it to the Union would not result in any hardship to the Employer. Receipt of the information is necessary for the Union to decide whether to challenge its competitive level determinations, and to help Union stewards answer questions from RIF’d employees. The latter would permit stewards to head off questions which might otherwise come to management. Because MSPB case law "places a burden on the employer to justify its choice of competitive levels," the Employer will be required to reveal the data ultimately anyway. Therefore, adoption of its proposal would also prevent the Union from filing ULP charges against the IRS if it fails to provide the requested information by the time Notices of RIF are distributed, "as well as a stream of interrogatories in connection with an MSPB appeal."

    b. The Employer’s Position

    The Employer proposes the following:

Each employee who receives a RIF notice will be told their competitive level and NTEU Chapters will be provided with Competitive Level Catalogs to make available to employees.

The Union will be provided with a list of competitive levels prior to their use.

The difference in the parties’ proposals on this issue is whether the Employer should be required to give the Union the minimum qualifications for each competitive level, and all the employees in the appointing office considered to be in each level, along with any documents which served as the basis for these determinations. The Union’s proposal should be rejected because it is "extremely burdensome and unreasonable." This contention is based on the manner in which the competitive level determinations were made, i.e., the Agency convened a group of position classification specialists who, using their particular expertise, compared official position descriptions and the actual duties of positions. While some of the information is "objective," the expertise and knowledge of the classification specialists "cannot be readily reproduced in written form." The position descriptions, critical elements, and qualifications standards have already been provided to the Union, either under the terms of NORD IV or a recent Union request under section 7114 of the Statute; thus, there is no purpose to requiring the Agency to provide this same information again.

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal. Although the Union insists that its approach requiring pre-RIF production of detailed information is "win-win" and will circumvent the need for dealing with these matters on a case-by-case basis, the Arbitrator is not convinced that the approach is workable within any reasonable timeframe and perhaps, at all. Much of what the Union wants is available in other ways, albeit more targeted at employees actually slated for RIF, which is appropriate. Review of the competitive level catalogue provided to the Union reflects that it provides a list of competitive levels within each classification series, with the general distinguishing characteristic. The Union is already in possession of position descriptions for all IRS positions and OPM RIF regulations dictate that position descriptions are the documents to be used in determining competitive levels. "Minimum qualifications" are not relevant to competitive level determinations. The record indicates that the substance of the decision-making is not further documented. The Employer described the process by which competitive levels were determined, as a deliberative one conducted by classifiers and subsequent review by personnelists. The Union did not respond to this information. In its proposal adopted in Issue #47 (Employer section IIB1), the Employer is obligated to provide explanations of competitive level assignments to employees receiving RIF notices in face-to-face meetings that include a Union representative.

38. ISSUE #51 (Union § 9)

When, if ever, may the Employer implement the pre-RIF freeze?

a. The Union’s Position

The Union proposes the following:

Once the reply has finished and the Employer has distributed decisions to all who applied, it may freeze the organization in anticipation of the issuance of Specific Notices.

It is appropriate to prevent the organization from being "frozen" until after the Employer has responded to employees’ challenges of any errors they find in the pre-RIF summary statements (see the Union’s proposal in Issue #47) for several reasons. First, it would promote the movement of RIF-threatened employees prior to the RIF, thereby decreasing the need for the RIF or diminishing its impact. In this regard, recent data shows that in some instances "the IRS need place only one more employee to avoid the need to conduct a RIF in that office." Second, the longer the pre-RIF freeze is imposed, the more the harm to the unit and the public. Jobs will go unfilled, and duties will have to be split up among nearby employees; employees due career ladder promotions will have them delayed through no fault of their own, and the public will suffer because "the full-time employee who was supposed to be doing the work has not yet been hired, trained, and moved into the position." Third, the IRS would be provided an incentive to complete the reply process in a timely manner if this is necessary to implement the freeze. Fourth, adoption of the Union’s proposal would "not work a hardship on the Employer of any kind" because it intends to implement a pre-freeze RIF and there is "no apparent reason" why it would do so before it has certified the accuracy of the summary statement data. Finally, there is no merit to the Employer’s contention that the parties’ Pre-RIF agreements bar consideration of its proposal on this, or any other proposal the Union has included in its final offer. On the one hand, the Employer never presented any evidence to support its allegation or to otherwise give the Arbitrator reason to support its position, even though the Arbitrator "directed the parties" to do so in a pre-hearing conference. On the other, the Union provided testimony on bargaining history showing that the Agency previously proposed such wording but failed to obtain the Union’s agreement; it also can point to language in the Pre-RIF I agreement clearly stating that it had the right to continue to advocate its last best offer currently before the Arbitrator despite having signed Pre-RIF I.

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s proposal should be rejected because it is inconsistent with Amendment Three of the Pre-RIF Agreement, as well as on the merits. In this regard, Amendment Three contains a provision allowing the Agency to impose a freeze 30 calendar days before it issues RIF notices, while under the Union’s current proposed wording, once the preliminary steps it requires have been completed, "the Agency would be free to institute and maintain a freeze as long as it needed to issue RIF notices." Given this lack of consistency, it is unclear which process the Agency must follow. Moreover, having just negotiated a freeze agreement, "the Union should not be permitted to propose yet another freeze time line." The 30-day freeze period contained in Amendment Three is reasonable because it allows sufficient time to stabilize the organization and prevent movement within the competitive areas and commuting areas undergoing a RIF so that the Agency can conduct accurate Round 1 and Round 2 competition. Finally, the Union’s proposal is integrally related to its other proposals on Issues #46 and #47 involving summary statements. Because those proposals are unreasonable on the grounds stated in connection with those issues, its freeze proposal also should not be imposed.

CONCLUSIONS

    The Arbitrator declines to adopt the Union's proposal on the merits inasmuch as the Union explained its proposal as directly related to its summary statement proposal. (See, Union's pre-hearing brief: "This issue is related to Issue #47. . . . Assuming there is a reply process, our intent here is to provide that the pre-RIF freeze will not be implemented until the reply process has concluded.") Issue #47 has been resolved by the Arbitrator adopting the Employer's proposal. It is noted that the parties' Pre-Rif Agreement contains a pre-RIF freeze.

39. ISSUE #53 (Union § 10 C, first four sent.; Employer § III C, first two sent.)

How shall the Employer make exceptions to the normal order of release?

a. The Union’s Position

The Union’s proposes the following:

In unusual situations the Employer may make exceptions to the normal order of release provided for in Subsection A in accordance with 5 C.F.R. 351.606, 5 C.F.R. 351.607, and 5 C.F.R. 351.608. Management has determined that all exceptions will be made in a fair and objective manner. When the Employer decides to use an exception, it will notify the Union and all employees impacted by the exception. Exceptions will be implemented on a systematic and uniform basis throughout the country. The notice will include all reasons for the exception as well as a complete rational why the employee chosen was so chosen.

The highlighted portions of its proposal go beyond regulatory requirements by adding to the standards the Employer would follow when making exceptions to the RIF process. Given the "total control" the Employer has in setting competitive areas and levels, and its exercise of that power to "cherry pick" its way through this RIF, there should be no need for the Employer to make any exceptions to the RIF process. Nevertheless, because the regulations appear to provide the Employer with this right as well, "it should be used under strict standards." The standards the Union proposes have already been applied to other subjects covered by the parties’ term agreements, and would stop high level managers from implementing different criteria, or ones that are "totally subjective." If managers are reluctant to make exceptions because of the Union’s proposed criteria "that is fine with us," given the extra benefits this would provide to employees who deserve them by virtue of earned retention standing.

    b. The Employer’s Position

    The Employer proposes the following:

In unusual situations the Employer may make exceptions to the normal order of release provided for in Subsection A in accordance with 5 C.F.R. 351.606, 5 C.F.R. 351.607, and 5 C.F.R. 351.608 and section 634 of the 1997 Appropriations Act. The Employer has determined that only the Regional Commissioners and the Chief Officers, or their equivalents, will be permitted to grant exceptions.

Exceptions to the normal order of release during a RIF are, by their very nature, based on unique circumstances. For example, an exception could occur because an employee is working on a critical computer project which no other employee could take over within 90 days without causing undue interruption to the functioning of the Agency. The Union’s proposal, however, by requiring uniformity and objectivity throughout the IRS when granting exceptions, would appear to require that such decisions be centralized and in the hands of only one person. Given the tight time frames involved when running a RIF, it would be a "tremendous burden" for one person unfamiliar with local circumstances to determine. Moreover, the terms "uniform, systematic, fair, and objective" are vague, and the Agency can foresee having to defend itself against charges that its exception decisions were in error on this basis alone. In contrast, its own proposal restricts the number of individuals empowered to make such decisions "to guarantee as best it can some degree of consistency" within Regions or Chief areas, and would ensure that those who grant exceptions are familiar with the individual facts and circumstances within their areas to make such determinations.

CONCLUSIONS

    To be understandable, Issues #53 and #54 have to be considered together. The Employer's proposal on each issue is adopted. Exceptions to the normal order of release are governed by OPM regulations which set out the circumstances in which exceptions can be granted. (See Module 3, Unit A, Section 17). The Employer's proposal basically incorporates the approach to exceptions taken by OPM. This approach is not without standards for granting exceptions. Exceptions can be made upon a determination that no higher standing employee can take over the position without "undue interruption to the agency," or to retain an employee who is using accrued annual leave to attain retirement or health benefits eligibility. Justifying these circumstances is going to depend upon on the particular circumstances involved.

    Given the above, the requirement in the Union's proposal that exceptions "be implemented on a systematic and uniform basis throughout the country" is not understandable. As to the Union's other standard, "fair and objective," in response to a RIF appeal by an impacted employee an agency has the burden of proving that it has properly applied RIF procedures and acted "uniformly." The Union proposal also requires an opportunity for employees to assert their readiness to assume the same work in a process that involves an oral reply and written management response. (The Employer proposal's more modest notice requirement tracks OPM requirements.) The Employer asserts that nearly all exceptions are for the purpose of creating eligibility for retirement, a circumstance making other employees' input irrelevant. It also points out that the Union's proposed reply process would halt the RIF for an entire competitive area. These statements were not challenged or addressed by the Union. The Arbitrator is unpersuaded that the Union has considered and, in its proposal, taken into account the less obvious ramifications of its proposal.

40. ISSUE #54 (Union § 10 C, last three sent.; Employer § III C, last two sent.)

What process will be provided to employees claiming a right to be terminated in retention order absent the assertion of an exception by the Employer?

a. The Union’s Position

The Union proposes the following:

All employees passed over will have an opportunity to assert and demonstrate their readiness to perform the same work. Moreover, they will be given a notice and opportunity to respond orally and in writing prior to being passed over. This response will be replied to before the employee is passed over and all procedural issues will be identical to those provided for oral and written replies to disciplinary action under the parties’ term agreements.

If the Employer decides to grant an exception in favor of someone with a lower retention standing "up to another 90 days of salary and employment" is at stake for the passed-over employees. Given these consequences, it is reasonable to permit such employees to reply to the decision, including the right to argue that they have the ability to do the work. This should not involve any hardship for management because it is the Employer’s decision to impose an exception in the first place. Hence, "if the exceptions are kept to a minimum, the replies will also be." Such replies and subsequent Employer review could be scheduled quickly. The right to reply is appropriate, particularly compared to other employment events which provide Federal employees with similar rights. In addition, the Employer also gains because mistakes in initial judgements may be caught, saving subsequent embarrassment and potential back pay and attorney fees if the employee successfully appeals to MSPB or an arbitrator. The "few hours" of management’s time that its proposal would require in listening to and answering a reply "seems like an excellent investment for the Government." This is yet another area where the due process question raised previously by the Union also applies.

    b. The Employer’s Position

    The Employer proposes the following:

When the Employer decides to use an exception of 30 days or more, it will notify the Union and all employees impacted by the exception in accordance with 5 C.F.R. 351.608(e). The notice will include all reasons for the exception as well as a complete rationale why the employee chosen was so chosen.

Its proposal merely restates the requirements of the RIF regulations when a higher standing employee is released before a lower standing employee due to the granting of an exception. Under the regulation, the higher standing employee has a post-separation right to appeal or grieve the RIF action. The Union’s proposal, on the other hand, would add to the regulatory requirements a right for the higher standing employee to assert and demonstrate readiness to perform the same work, as well as a 30-day advance written notice of the exception, an opportunity to respond orally and in writing, and a requirement that the Agency respond in writing to the employee before separation occurs. The Union’s pre-termination process "makes very little sense" because "approximately 90 percent" of the exceptions are granted to permit employees who are within reach of retirement eligibility to remain on an agency’s roles on annual leave past the effective date of the RIF until such time as they reach retirement eligibility. When exceptions are granted to prevent undue interruption of a function, on the other hand, the Union’s proposed pre-termination notice and reply requirement "only serves to delay the entire RIF process," since such an appeal would mean that no related RIF actions could be processed until the appeal is settled.

CONCLUSIONS

    For the reasons set forth under Issue #53, the Employer's proposal is adopted.

41. ISSUE #55 (Union § 10 D 1, last sent.)

What right, if any, will an employee have to a voluntary downgrade prior to a RIF?

a. The Union’s Position

The Union proposes the following:

The Employer will accept any request for a voluntary downgrade made in the 5 days prior to a RIF and for the purposes of improving an employee’s chances of retention.(37)

Under current RIF regulations, an employee may be informed that if she remains in her current position, there will be no position into which she can bump or retreat because she has no right to positions more than three grades below the position from which she was released. Its proposal would require the Employer to downgrade any employee who requests it, under the circumstances presented, so that the employee could bump or retreat into a lower graded position. Moreover, it could permit an employee who otherwise would be entitled only to a less desirable position at the current grade to avoid this outcome. In addition to the obvious benefit to the affected employee of providing "an element of choice," the proposal (similar to its proposal on Issue #63) has the potential to help the Employer fill a job where it may "otherwise have to use a full recruiting effort to select a new hire." Hence, it represents another "win-win" situation for the parties.

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s proposal requires the Employer to allow any employee, upon request, to take a voluntary downgrade prior to a RIF without regard to whether (1) there is a vacancy, (2) the Employer has determined to fill the vacancy, and (3) the employee is qualified for the vacant position. Thus, the proposal interferes with management’s rights to assign employees under section 7106(a)(2)(A) and to make selections under section 7106(a)(2)(C).(38) Even if the proposal is interpreted to apply only in circumstances where the Employer decides to fill vacancies, the proposal is nonnegotiable because it requires that vacancies be filled regardless of the qualification of employees requesting the downgrade; specifically, the proposal infringes on management right to make selections under section 7106(a)(2)(C), which includes the right to make qualification determinations.(39)

    The Union’s proposal is also unclear regarding when the 5 days begin within which the downgrades would be permitted. If it is the 5-day period prior to separation, the proposal would violate the RIF regulations, which specify that all vacancies an agency determines to fill during a RIF must occur using the bump and retreat process (5 C.F.R. 351.201(b)). If it is the 5-day period prior to the issuance of RIF notices, it is "unreasonable and inconsistent with other Union proposals and Amendment Three to the Pre-RIF Agreement." Among other things, it would conflict with the freezing of the organization that must occur a reasonable period prior to the issuance of the notices; consequently, "the planning of the RIF would be undone." It also provides no guarantees that an employee electing to take a voluntary downgrade would not be bumped from the lower-graded position she would qualify for by another employee with superior bump or retreat rights. Finally, the proposal is unnecessary because of the numerous steps the parties have already taken to encourage employees to accept either lateral reassignments or voluntary changes to lower grades to continuing positions elsewhere in the Agency.

CONCLUSIONS

    The Arbitrator declines to consider the Union's proposal. The Employer's assertion that the proposal violates management's right to assign and select employees has not been met by the Union with a FLRA case upholding the negotiability of this proposal, which appears to dictate that a downgrade be granted regardless of whether a vacancy in a lower graded position exists, or whether a decision has been made to fill the vacancy. To move forward with the proposal, the Union will have to establish its negotiability before the FLRA. It is noted that in the absence of this proposal, CTAP/CES employees have certain rights under pre-RIF agreements to be selected for lower graded positions. And under this agreement, RIF'ed employees can be offered assignments in lieu of separation to a lower graded position.

42. ISSUE#57 (Union § 10 D 4; Employer § III D 4)

How will an employee impacted by a RIF be assigned during the RIF and how many offers of assignment will the employee receive?

a. The Union’s Position

The Union proposes the following:

The Employer shall offer the employee with the highest retention standing the opportunity to reassign to all positions for which he or she has bump or retreat rights. The employee is free to select the assignment he or she wishes from among these opportunities to which he has rights under law, regulation, and this contract. In selecting employees for assignment, the employee with the highest retention standing among those who have received a RIF notice will be offered the position held before those with lower retention standing. An employee is entitled to no further offers when:

a. They accept an offer;

b. They reject a requested offer; or

c. They fail to reply to an offer within a reasonable time.

Should the Employer insist that it has a management right to assign employees to a specific position, it will do so using highest retention standing among those who volunteer for the vacancy or it will run a merit competition to identify the best candidate prior to making its selection.

Regardless of the parties’ mutually agreed upon issues statement, "the regulations seem to" entitle employees only to one assignment offer, and that is all either party’s proposal would provide. It is "fighting" here to maintain a RIF’d employee’s right to choose which position "she moves into," as opposed to the Employer’s "paternalistic view" that it knows what is best for the employee. Despite the Employer’s attempt to confuse the issue during the arbitration hearing, the Union’s proposal "is no different than nor more complicated than" any bidding system that operates today "in thousands of workplaces" in connection with numerous other types of assignment matters. Under the IRS system, the affected employee could be ordered to report to another post of duty up to 40 miles away, into a job the employee does not like, which does not have as good a career ladder promotion potential as others, and one without AWS/flexiplace rights, or free parking. The Union’s proposal, on the other hand, would give the employee a short period of time to compare options and provide IRS with a list of preferences, and avoids a situation where assignments are chosen by management for subjective reasons. It would also avoid "severe morale problems" flowing from the RIF that would "infect all who are dissatisfied with their assignment." The Employer has never explained why it should not desire the same result. This is particularly odd given that the Employer has already agreed to a similar Union proposal, albeit one applying to "a slightly different situation that comes later in the RIF process" (Issue #61). In addition, the approach the Union advocates is consistent with the parties’ "collective bargaining tradition" to maximize employee choice in the selection of positions, and "is not about how many offers an employee may get," but merely balances the employee’s preferences "against the preferences of others."

    Regarding the Employer’s nonnegotiability arguments, while the Union has already modified its wording to address one of those concerns, the core of the proposal "continues to be that an employee has a right to choose using his or her highest retention standing." In this connection, the RIF regulations already obligate the Employer to reassign employees to other positions, so the Union does not have to force the obligation on the Employer. Because the affected employees have bump and retreat rights to the positions, the Employer cannot require that they retreat to fewer positions than the OPM regulations permit. Thus, the cases cited by the Employer in support of its nonnegotiability allegations are not applicable because they do not concern bump or retreat rights, they "predate current regulations," or they do not concern RIFs.

    b. The Employer’s Position

    The Employer proposes the following:

An employee is entitled to only one (1) offer of assignment. Employees released from their competitive level in Round 1 will be provided assignment rights in retention order and shall be offered the position occupied by the employee with the lowest retention standing. An employee is entitled to no further offers when:

a. They accept an offer;

b. They reject an offer; or

c. They fail to reply to an offer within a reasonable time.

The Union’s revised proposal provides that employees, and not the Employer, would choose the positions to which they will be assigned when there are two or more positions to which they may bump or retreat. It also precludes management from assigning employees to positions where their skills and/or qualifications are best suited. Thus, it is nonnegotiable because it infringes on management’s rights to select which employee to assign to particular positions under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B) of the Statute.(40) The proposal is not an appropriate arrangement because it leaves the Employer with no discretion in assigning employees; the benefit to employees being reassigned in a RIF does not outweigh the burden imposed on the Employer’s ability to use employees’ skills where they are most needed; therefore, the proposal also excessively interferes with the management rights discussed above.(41)

    On the merits of the issue, the key question addressed by the parties’ vastly divergent proposals is what process to use when an employee has assignment rights to more than one "best offer," i.e., the position which is closest in salary to the former position. In this regard, unlike the Employer’s proposal, the Union’s "is extremely disruptive and does not preserve seniority." In essence, because of the RIF regulations pertaining to bumping assignments, providing employees with more than one best offer the right to choose which position to select could result in the bumping of the more senior employees within a subgroup, rather than those with less experience. Moreover, those more senior employees could not subsequently bump employees within the same subgroup who are less senior because "employees can only bump into positions occupied by employees in a lower tenure group or subgroup." In addition, the second paragraph of the Union’s proposal is "extremely obscure," and could apply to Round 1 competition. If this is the case, "the proposal essentially permits employees unaffected by the RIF" to nevertheless compete for new jobs, a process which would create "needless disruption" within the Agency at a time when it is trying to place employees who are truly adversely affected. Finally, not only could the process proposed by the Union "take up to 1 year to complete," depending on the number of employees being separated and the 5 workdays each employee would be given to choose their positions, but it also would permit employees to "personalize" the selection of positions "based on improper motives."

CONCLUSIONS

    The Union is proposing a quite dramatically different RIF process in which the Employer does not determine the position to which an employee will be assigned in exercise of bump and retreat rights but instead employees released from their competitive levels select from among positions to which they have bump or retreat rights. This "choice" option is presented as an unmitigated good, and an efficient method of running a RIF. However, the Arbitrator has thought carefully about the ramifications of imposing a new and untested RIF procedure where release decisions are not by operation of "objective" rules but "personalized" so that employee A is not exposed to RIF separation because she had lower retention standing than Employee B and held a job with the closest representative rate and best matching B's qualifications. She is losing her job because Employee B preferred it over other options. While we presume good faith on every employee's part, how does such a system guard against preferences being exercised for mean, petty, or other improper reasons? The Union would say that managers can personalize assignment decision and consider improper factors. But at least management assignments are subject to review for consistency with RIF regulations. Do employees have to answer for the reasons for their preference selections if a RIF appeal is made by someone who is adversely affected under the Union's process but would have been untouched under the Employer's?

    The legal and policy framework surrounding the conduct of RIFs in the Federal Government is elaborate. The Union has not described any instance where a procedure such as it proposes has been adopted or utilized in the Federal workplace (or anywhere) for a RIF. Letting employees bid and choose for overtime and reassignment is one thing. Letting them pick which employees will remain employed and which will not, is another.

    Beyond this broader policy issue, there are problems raised by the proposal's confusing language. Inevitably, it seems, there could be time-consuming "cascading effects" if Employee A (to use the above example), in turn, had bump and retreat rights, so that another round of preferences had to be entertained, and so forth. This is not acknowledged by the Union in describing the efficiency of its approach. Also, the sentence beginning "Should the employer insist" remains opaque despite Union explanations, referring to a bidding process for a "vacancy" when bumping refers to moving into an encumbered position. Also offering a merit competition alternative for filling vacancies is not permitted during a RIF. The Employer raises another problem with the potential it sees for the Union's "choice" process to cause the bumping of a more senior employee who could have nowhere to go. And it is possible to read the language as involving employees not impacted by the RIF in a "bidding" process for positions, a situation which could dilute the opportunities for employees facing drastic outcomes. The Arbitrator refers again to the concerns expressed at Issue #10. Finally, if the proposal means that preference is intended to supplant a management decision on placement upon release in Round 1 of the RIF, it raises negotiability issues. The Union has provided no case decided by the FLRA which finds a proposal similar to this one negotiable, while the cases "on the books" suggest a contrary view.

    Based upon the above considerations, the Arbitrator adopts the Employer's proposal which restates the basic RIF rules and makes selection by retention standing controlling.

33.The "final offer" authority of the Arbitrator requires adoption of one or the other of the parties's proposals "if otherwise legal". Both parties' proposals contain inconsistencies with OPM regulations. A simple severing of problematic language in the Union proposal permits adoption of a proposal to resolve this issue.

34.In this regard, the Union contests the Employer’s interpretation of McMahon v. Department of the Army, 84 FMSR 5445 (1984).

35.The Employer provides citations to MSPB case law in support of these contentions.

36.Ray v. Department of the Air Force, 3 MSPR 445 (1980).

37.On this issue, the undersigned sustained the Employer’s objection to the Union’s revised proposal because it violated the terms of a previous Panel directive.

38.The Employer cites numerous FLRA cases in support of this contention, among them KANG, cited in footnote 12.

39.Again, the Employer supports its allegation by citing to KANG, as well as Association of Civilian Technicians, New York State Council and Department of Defense, National Guard Bureau, State of New York, 45 FLRA 17, 20 (1992), among others.

40.In support of its nonnegotiability allegations, the Employer cites American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 627 (1980); American Federation of Government Employees, AFL-CIO, Council 214 and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 8 FLRA 425, 426-427 (1982); and Department of Defense, Office of Dependent Schools and Overseas Education Association, 28 FLRA 871, 879-881 (1987).

41.In this regard, the Employer refers to National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 47 FLRA 370, 387 (1993).

(. . . continued) Issues 62 through 79

In the Matter of

DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

WASHINGTON, D.C.

and

NATIONAL TREASURY EMPLOYEES UNION

Case No. 97 FSIP 31

 

Issues 62 through 79 follow:

 

43. ISSUE #62 (Union § 10 G)

Will employees RIF’d under a narrow competitive area approach have the right to be selected for vacancies anywhere in the country using CTAP and reemployment rights and what rights will they have upon selection, e.g., moving expenses?

a. The Union’s Position

The Union proposes the following:

Once the final RIF decisions are implemented (and if the competitive area is less than nationwide), unit employees not offered an assignment within their commuting area will be considered for any vacant unit positions anywhere in the country by retention standing. All they need do is give the Employer a notice of their desire to be considered for a vacant position in another office and they will be so considered using the CTAP and redeployment rights. This will continue with the employee for a period of 2 years after the RIF. Where there are more employees than positions, employees will be selected in order of retention standing, unless the Employer runs a merit competition under the terms of the parties’ contract. Selected employees will receive reasonable moving expenses.

Its proposal would lessen the impact of the Employer’s decision to draw narrow competitive areas when conducting the current RIF. A 2-year period of consideration for vacancies anywhere in the country, along with moving expenses, is appropriate for employees who have been RIF’d. Technically, such employees would be reinstated as "reinstatement eligibles," without competition, unless the Employer wished to select someone other than the person with the highest retention standing. The use of the "reinstatement eligible" concept was contemplated by the parties when they drafted NORD IV, and "we can think of no better use for it than here." Ideally, the obligations outlined under its proposal may also cause the Employer to rethink the need for a RIF at all in certain offices where the current number of surplus employees is very low. In summary, "the IRS has never pointed out any harm it suffers from this proposal and we can find none." The most it requires the IRS to do is "consider" the employee for selection, so the Employer’s nonnegotiability arguments are the result of its having misconstrued the proposal’s clear meaning.

    The Employer attempted to outline a case of "mass confusion" from the simultaneous operation of the Union’s proposal under this issue, and those under Issues #74 and #75. The Arbitrator should not fall for this "feigned confusion ruse," because its proposals "operate very clearly" and merely outline the right of terminated IRS employees to receive a priority selection status for any positions that remain after the RIF is concluded, "including the assignment of employees to positions during the RIF notice process through bump and retreat rights." Finally, its proposals on these issues "have no relation to the filling of the ‘needs’ jobs" because they will be filled through either the RIF reassignment rights process, or cease at the end of the RIF.

    b. The Employer’s Position

    The Employer has no counterproposal. With respect to the Union’s proposal, its meaning is unclear. To the extent that it would require the Employer to hire a RIF-separated employee who applies for a vacancy, it is nonnegotiable because it interferes with management’s rights to hire, assign employees, and make selections in filling positions, under section 7106(a)(1) of the Statute. Since it totally abrogates managements discretion to determine whether or not to fill vacancies, it is not an appropriate arrangement under section 7106(b)(3). To the extent that the proposal would require the Employer to hire a RIF-separated employee regardless of qualifications for positions, the proposal interferes with management’s right to make selection for vacancies under § 7106(a)(2)(C). In addition, in various ways the proposal is inconsistent with its other proposals concerning reemployment rights for separated employees in Issues #74 and #75. For this reason, special note should be taken and, "under no circumstance" should all three of the Union’s proposals be imposed by the Arbitrator. Moreover, by requiring the Agency to give priority selection or consideration rights only to former Agency employees, the proposal violates Government wide reemployment regulations which specify that such rights must be given to all Department of Treasury employees. To the extent that it requires the Agency to provide selection priority to separated Tenure Group II employees for 2 years, it violates 5 C.F.R. 330.204(b), which states that such employees only have priority selection rights for 1 year. It also violates 5 C.F.R. 330.206(a)(1)-(2) to the extent that it requires the Agency to select a RIF-separated employee from outside the commuting area over one from within the commuting area.

    Turning to the merits, the fact that the proposal would require the Agency to pick up the costs of moving expenses to another commuting area "could inhibit the Agency’s ability to fill needed vacancies." An average move costs between $40,000 to $60,000, and it makes "little sense" to require the Agency to select someone outside the commuting area when there are qualified RIF-separated employees available locally. Finally, it also would be "administratively burdensome" and could lead to delays in the filling of positions. This is because no vacancy could be filled until management contacted all RIF-separated employees over a 2-year period to determine whether they were interested in the position.

CONCLUSIONS

    The Arbitrator declines to adopt the Union's proposal on the merits. Despite the Union's explanation, its language is internally inconsistent and not necessarily in line with the Union's statements that the section does no more than require "consideration" of RIF-separated employees for 2 years. The last sentence seems quite clear that selection by retention standing is required unless a merit competition is used. Nothing in the language acknowledges an option for the Employer to not fill the vacancy, supporting the Employer's claim of non-negotiability. Also troublesome is how the proposal would operate in conjunction with the Treasury Department Reemployment Priority List program which operates agency-wide (not just IRS-wide) and has other specific rules. Although the Union proposal says that employees will be using "reemployment rights" ("redeployment" as it appears in the proposal it admits is a misnomer) it has not tried to explain how its proposal, which makes selection of an IRS-RIFed employee and merit selection the only two means of filling an IRS vacancy, could operate consistently with the Treasury program or government wide regulations concerning reemployment.

44. ISSUE #63 (Union § 10 H)

What will be the rights of an employee displaced due to movement within his/her competitive level?

a. The Union’s Position

The Union proposes the following:

If an employee must leave his or her position due to the movement of another employee the Employer will solicit from among the potentially impacted employees in the competitive level for volunteers to move to the targeted vacant position. The Employer will notify all potentially impacted employees of the targeted vacant position in writing and give them 3 days to apply. If any volunteer, they will be moved or the Employer will explain in writing to the volunteer why he or she was not selected. It will also notify the Union of the situation and delay further selection action for 3 working days to permit the Union to have discussions with the Employer. If the Employer selects from among the volunteers, ties will be broken by highest retention standing.

Its proposed wording is "designed to help the Employer avoid the need to RIF at all." It does so by requiring it to announce in advance of the RIF the number of positions to be eliminated within a competitive level. Because employees will have a very good idea who the affected employees would be, those who are willing to volunteer to move instead, for whatever reasons, should be permitted to do so. If the Employer "turns its back on this opportunity" it would "increase its chances of having to conduct an actual RIF or a broader one than needed." The same principle was agreed upon by the parties in term negotiations to address reassignments, and "should be applied here" as well. The continuation of IRS’s opposition to this proposal, in fact, should count against its complaints in other situations "where a Union proposal might result in some administrative inconvenience." In conclusion, the proposal "meets all the interests that both parties should share."

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s original proposal was revised as the result of the Employer’s nonnegotiability arguments. Based on the Union’s explanation of the meaning of its revised proposal presented for the first time at the arbitration hearing, it would require that employees be informed of vacancies prior to the RIF so they may be given an opportunity to apply. To the extent that it requires that vacancies which are filled as part of the RIF process be filled on a voluntary basis, the proposal "is contrary to law" because agencies that choose to fill vacancies during a RIF must follow RIF procedures when doing so.(42) It is also "totally inconsistent" with the parties’ Pre-RIF Agreement, Amendment Three, and the CTAP regulations at 5 C.F.R. Part 330, Subpart F. Among other things, if an employee with a CES and an employee with a higher retention standing not impacted by the RIF apply for the same vacancy, under the proposal, the Agency would have to select the employee with the highest retention standing. In addition to being in conflict with the Pre-RIF Agreement, which prioritized how employees would be selected for vacancies, and the CTAP regulations, the proposed process "makes absolutely no sense." Finally, if the proposal is intended to apply during the 30-day freeze period agreed to by the parties under Amendment Three, "it would totally ameliorate the advantage of the freeze and interfere with the Agency’s ability to conduct the RIF."

CONCLUSIONS

    The Arbitrator declines to adopt the Union's proposal on the merits. In trying to get around the negotiability problems raised by the Employer about its original language, the Union has laid out a procedure that is unclear and not made understandable by its explanations. A major problem with asking the Arbitrator to adopt language that is full of ambiguities and questions is that it would take another round of talks for the parties to figure out how to effectuate the Union's language, an effort that could end in more litigation of one kind or another. The Union's original proposal called for employees to be able to shift around within their competitive level, through the exercise of choice, prior to a release being made of the person with the lowest retention standing in RIF Round 1. As rewritten the section appears to apply at a later stage, when a reassignment of the released employee is about to take place and the released employee is heading for a vacancy (the "target vacant position"). It appears that what is then intended is to solicit volunteers to take the place of the employee otherwise to be released, although if that is true, the opening phrase, "If an employee must leave his or her position due to the movement of another employee," makes absolutely no sense whatever to the Arbitrator.

    The Union asks the Arbitrator to consider as support for its RIF proposal its term contract provision on involuntary reassignments. As expressed at Issue #57, the Arbitrator is not persuaded that the situations are appropriately analogous. The involuntary reassignment situation is not one governed by the plethora of rules applicable to RIFs, nor does it involve the possibility of separation. What if, as the Employer hypothesizes, an employee who volunteers for a lower level vacancy is exposed to the possibility of separation in another round of the RIF? The Arbitrator does not know how likely this is, but the Union did not deny or explain away that possibility.

    Since deciding this issue on the merits, the Arbitrator does not address the negotiability questions raised by the Employer but notes that missing from the Union's proposal is the idea that selection among volunteers is possible only if they are determined equally qualified by management based on retention standards. The Union has not offered authority for the negotiability of its proposal as drafted.

45. ISSUE #65 (Union § 10 J; Employer § III B, last sent.)

Union Statement of the Issue:

Will the Employer be obligated to maximize an employee’s salary benefits, e.g. save grade and pay?

Employer Statement of the Issue:

Must the Employer provide every salary benefit within its discretion, including, but not limited to save grade and pay and highest previous rate, to employees?

a. The Union’s Position

The Union proposes the following:

Employees will be given the maximum amount of saved grade and pay as well as the maximum benefit under the highest previous rate rule as well as similar compensation rules. No salary benefit that is within the IRS discretion to grant them will be denied if it will lessen the adverse impact of the forced reassignment pursuant to the RIF.

This wording is intended to avoid the situation where, after the agreement has been implemented, the parties realize that there is a salary benefit that could lessen the impact on RIF’d employees, "but no one knows what to do with it" because it was never discussed in bargaining. Although the Union is "not an expert in all the salary benefits," and currently unaware of what other benefits an employee might be eligible for, once discovered its proposal would commit the IRS to granting it to the employee, if he or she qualifies. It is not an attempt to "spring" some benefit on the Employer once it has signed the agreement, nor is the Union trying to commit the Employer to do something prohibited by law or regulations.

    b. The Employer’s Position

    The Employer proposes the following:

Retained pay and grade will be provided to the maximum extent allowed by law.

Its proposal is consistent with the sections of the RIF regulations which deal with grade and pay retention, while the Union’s takes the Agency’s proposal "one step further and into the realm of the perverse." It should be rejected by the Arbitrator because it is "broad and ambiguous," and would only result in "unforeseen and unanticipated" consequences inviting future litigation.

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal. The Employer is committing to providing retained pay and grade to the maximum extent allowed by law. "No salary benefit that is within the IRS discretion to grant" is too vague to give the parties (or the Arbitrator) notice of what is intended in the Union's language.

46. ISSUE #66 (U-S 11 A, sentence 1, & C and M-S IV A, first 2 sentences)

When will a notice of RIF be issued to employees?

a. The Union’s Position

The Union’s proposes the following:

Notice to Employees. Employees selected for release from a competitive level in Round I will be given a specific written notice at least 120 full calendar days before the effective date of release.

A 120-day notice period is more appropriate than 60 days for 13 separate reasons, among them the following. While the OPM RIF regulations establish a "floor" of 60 days, Congress recently "overrode OPM" on behalf of employees in the Department of Defense, and established the longer period "when a substantial number of employees are involved (5 C.F.R. 351.801(a)(2))." Given that well over 1,000 employees in about 30 offices are likely to be separated, and many more affected through bump, retreat, and other assignment rights, "this is clearly a substantial RIF" that meets the criterion recently applied by Congress. A longer notice period would also help alleviate the impact on employees who are terminated by permitting them to look for new jobs. The Employer could have "undermined" the need for a longer period by announcing which competitive levels employees occupy, and how many positions are to be cut; because it failed to do so, employees have not had the information they require to "move aggressively" in finding other jobs.

    Because the Employer decided not to take numerous steps which would have been more responsive to employee needs, but instead opted "to pursue a RIF designed only to help management," it should not be permitted to "plead burden" from a 120-day notice period, i.e., "any benefit of doubt should go to the employees." Given that this is the IRS’s first RIF, and the high error rate that has occurred in its preliminary stages, the longer period is warranted "simply to allow more time to implement and correct errors." IRS employees also were hired under a clear "no RIF policy" which management has never repudiated, but now has "decided to ignore." A 120-day notice period would provide these employees with the consideration they deserve for having so clearly been "mislead" during their careers "about the possibility of a RIF at IRS." Finally, the Arbitrator should give some consideration to the substantial tax consequences it would have on what are typically lower graded employees if this RIF is conducted before the end of the year. In this regard, the testimony of its witness at the hearing established that the typical employee with a full bank of annual leave would "wind up paying another $900+" in tax due to a premature distribution of annual leave.

    b. The Employer’s Position

    The Employer proposes the following:

Notice to Employees. Employees selected for release from a competitive level will be given a specific written notice at least 60 full calendar days before the effective date of release consistent with Article 28 of the NORD/NC agreements. (The notice period begins the day after the employee receives the notice.)

A 60-day notice period is reasonable because under the Pre-RIF Agreement employees occupying non-continuing positions were notified of that fact in November 1996, given priority selection rights to any vacancy, and provided access to the Agency’s Outplacement Program. In addition, under Amendment Three employees who are likely to be separated were notified in June 1997, and given these same opportunities. These steps already constitute adequate advance notice, and the Agency has provided such employees "with various rights, benefits, and services to assist them in finding alternative employment." On the other hand, the Union’s proposed 120-day notice period for employees released from their competitive levels during Round 1, when combined with its proposal in Issue #71 for an additional 60-day notice period prior to the effective date of the RIF (informing employees exercising their bump and retreat rights as well as those employees being bumped and retreated against whether they are being separated, reassigned without a downgrade, or downgraded), is "bizarre and nonsensical." This two-step process would create a great deal of "unwarranted anxiety" because employees who are told that they are being released from their competitive levels will not necessarily be separated or even downgraded, but will nevertheless "think the worst" -- and then have an additional 120 days "before they are informed of their ultimate fate." In addition, employees who get the first 120-day notice will have a "head start" on obtaining certain benefits available under previous agreements and existing placement programs before the "truly impacted" employee even receives a 60-day notice informing them of their separation. Overall, the effect of the two Union proposals would be to provide a 180-day advance notice period, which is "entirely too long." In this regard, (1) there is no comparison between the massive downsizing which has occurred in the Department of Defense, where employees received only a 120-day notice period, and the IRS’s RIF; (2) it would place employees in an understandably "unproductive mode" for 6 months; (3) a 120-day initial advance notice period will excessively "destabilize" the competitive area in the sense that each time an employee voluntarily leaves the Agency, "additional iterations" of the RIF must be run to see whether the departure had an effect on another employee’s RIF action; and (4) the longer that employees scheduled for separation remain in the work area, the greater the chances that a "catastrophic incident" could be caused by a "disgruntled employee."

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal. The Union focuses on the length of the notice period, but its proposal does not simply lengthen the minimum 60 day notice period (e.g., extend it to 90 or 120 days as at DOD). It adds 120 days to make a total of 180 days and splits the specific RIF notice into two parts. Other than giving more time, which could have been proposed by itself, the Arbitrator sees little wisdom in a process that in its first stage gives notice of RIF impact to only a portion of the employees to be ultimately affected, and leaves hanging all of those who might possibly be impacted in the second round through bump and retreat. It also appears when looking at the next proposal, that the employee will not, at this juncture, be told where he or she will be going upon release from his or her competitive level. One possibility under this scenario is that many employees will unnecessarily feel in limbo, or at risk and take steps not warranted by their actual situation. It is hard to accept the rationale for creating this confusion given the various pre-RIF processes worked out by the parties in which a mock RIF has been conducted and employees whose separation is likely have been identified, and so informed, and plugged into various opportunities for placement. The Union has never asserted that for any employee, the RIF notice will be their first news that they are in harm's way. The only way the Arbitrator can understand this proposal is as part of the Union's proposals taken in toto which envision a consensual process by which employees will work out together who is going to go, and where, so that an actual RIF process really never has to take place. As presented here, and for the reasons discussed elsewhere, that process is not amenable to adoption by this Arbitrator.

47. ISSUE #67 (Union § 11 A 1-11; Employer § IV A 1-8)

What information will be contained in the Notice of a RIF to an employee?

a. The Union’s Position

The Union proposes the following:

Notice to Employees. Employees selected for release from a competitive level in Round I will be given a specific written notice at least 120 full calendar days before the effective date of release. The notice to the employee shall state specifically:

1. The action to be taken, reason for the action, a complete statement of all the evidence supporting the reason so the employee can make and informed decision about whether to challenge the reason, and its effective date, e.g., the specific plan for the reorganization showing to whom the employee’s work will be reassigned (or no longer done) and the alleged efficiency stemming from that decision);

2. The employee’s competitive area, competitive level, subgroup, service date, and annual performance ratings of record received during the last 4 years;

3. The place where the employee may inspect the regulations and records pertinent to the case;

4. The reasons for retaining a lower-standing employee in the same competitive level under 5 C.F.R. 351.607 or 351.608, should it be necessary for the agency to make an exception to the normal order of release;

5. Information on reemployment rights, including rights under the agency Career Transition Assistance Plan (CTAP), Reemployment Priority Lists, and the Interagency Career Transition Assistance Plan (ICTAP);

6. Benefits (i.e., severance pay, unemployment compensation, health and life insurance, lumps sum payments); and

7. Grievance and/or appeals rights. Within 10 workdays after the implementation of this agreement, NTEU will select the RIF appeal forum, either MSPB or the grievance/arbitration procedure of the national term contracts. Once one of those methods is selected, all Chapters will be bound by the choice and NTEU will notify IRS of its decision within that same 10 workdays. If NTEU fails to make a selection, RIF appeals will be processed in accordance with the grievance/arbitration provisions of the term agreements. If the Union chooses, it will have no adverse impact on the rights of employees and the Union to grieve and arbitrate those matters not appealable to MSPB. Moreover, if NTEU chooses MSPB, the IRS will attach to each RIF notice a copy of a letter prepared by NTEU, if not jointly, advising employees about what is specifically appealable to MSPB and what still must be grieved.

8. A statement of the severance pay the employee will receive.(43)

9. The notice will also include a list of all RIF scores, with points attributable to each dimension of scoring, for employees against whom that employee competed, e.g., who were within the competitive level. (To the extent the Employer is compelled by law or regulation to avoid releasing any of this information lest employee privacy be violated, the Employer will transmit this information in sanitized form, e.g., using employee identifying codes such as Employee A.)

10. A statement informing the employee that he or she is entitled to a reasonable amount of official time, at minimum 8 hours, to confer with a representative prior to filing an appeal if the RIF decisions must be appealed to MSPB.

11. A statement outlining NTEU’s representation rights should if decide to appeal these matters to the MSPB versus the grievance-arbitration process.

As with many of its other proposals in this case, its underlying motivation is "to have the Employer be as open as possible about what decisions were made and how." In essence, its proposal on this issue would require the Employer to provide employees with: (1) a statement of the evidence that establishes the basis for the RIF (subsection 1); (2) an attachment to the RIF notice describing the jurisdictional distinctions between MSPB and grievances (subsection 7); (3) information about the competitive levels they occupy and who else in the office is in that level (subsection 9); (4) at least 8 hours of official time to confer with a Union representative prior to filing an appeal if the RIF decisions must be appealed to MSPB (subsection 10); and (5) information concerning "the law of fair representation," should the matter go to MSPB. Otherwise, the parties are in virtual agreement on the remaining items on this issue (subsection 11).

    Employees are "entitled" to a summary statement of the evidence on which the RIF is based. Providing such a statement in the actual notice "would be more efficient for everyone," and prevent "an administrative nightmare" once the appeal stage is entered. Because the Employer legally carries the burden of establishing some grounds for the RIF, the Union’s request to know what conclusions it is up against, based on what findings, is a reasonable one. Concerning subsection 7, its proposal is warranted because it would avoid or minimize appeal errors regarding the "very technical" issue of what issues MSPB will take jurisdiction over, and what issues will go the grievance route "even if the Union chooses MSPB for the core RIF appeals." Subsection 9 involves information on employees’ competitive levels, "something that is so fundamental to their concern for whether they were treated correctly and free of disparity." If its proposal on this issue is not adopted, there is no way in the IRS’s plan for employees to learn this "absent an individual appeal." With respect to subsection 10, it has selected a presumed amount of official time "to avoid potential grievances not just over the RIF, but also over how much time" employees should get to meet with their Union representatives. Moreover, the actual time used "is likely to be far less than 8 hours, absent a major error by IRS." And on subsection 11, information regarding the Union’s views on its duty to fairly represent employees once the matter goes to MSPB "is not something the average employee is likely to know or learn easily from another source." In summary, while the Employer is being asked to do more than it wants to on Issue #67, this should not be burdensome or delay the RIF, and it has the potential of helping both parties avoid "time consuming individual questions and information requests." With regard to the Employer’s nonnegotiability argument on A9 of its proposal, it has added wording concerning the protection of employee’s privacy rights which cures the problem. As to the duty-to-bargain arguments raised on A10, the Employer "misconstrues" the proposal. The time in question is not leave, but official time pursuant to section 7131(d) of the Statute; such time will be used for "representational services." By using the phrase "reasonable amount of official time," the Union intends that such time be taken when it is convenient to both the Employer and the employees without compromising representational activity.

    b. The Employer’s Position

Notice to Employees. Employees selected for release from a competitive level will be given a specific written notice at least 60 full calendar days before the effective date of release consistent with Article 28 of the NORD/NC agreements. (The notice period begins the day after the employee receives the notice.) The notice to the employee shall state specifically.

1. The action to be taken, reason for the action, and its effective date;

2. The employee’s competitive area, competitive level, subgroup, service date, and annual performance ratings of record received during the last 4 years;

3. The place where the employee may inspect the regulations and records pertinent to the case;

4. The reasons for retaining a lower-standing employee in the same competitive level under 5 C.F.R. 351.607 or 351.608, should it be necessary for the agency to make an exception to the normal order of release;

5. Information on reemployment rights, including rights under the agency Career Transition Assistance Plan (CTAP), Reemployment Priority Lists, and the Interagency Career Transition Assistance Plan (ICTAP);

6. Benefits (i.e., severance pay, unemployment compensation, health and life insurance, lump sum payments); and

7. Appeal or grievance rights.

8. Employees will receive a separate statement of their estimated severance pay. Severance pay will be paid in the maximum amount allowed under law.

The information it is proposing to include in the RIF notices merely restates the requirements in 5 C.F.R. 351.802. A10 of the Union’s proposal is nonnegotiable because it excessively interferes with management’s right to assign work under § 7106(a)(2)(B), and is not an appropriate arrangement under § 7106(b)(3); in this regard, it does not allow management to require employees to remain on duty to perform necessary work.(44) On the merits of the overall proposal, however, it "goes so far beyond what is required by regulations as to be completely unreasonable." It is in fact "doubly unreasonable" because the Employer would have to give the that same unreasonable notice twice. For example, providing employees with "a complete statement of all the evidence supporting the reason" for the RIF action, and "the specific plan for the reorganization showing to whom the work will be reassigned (or no longer done) and the alleged efficiency stemming from that decision" might make sense if employees could challenge the underlying business reasons for the RIF on appeal. The RIF regulations and MSPB case law make it clear, however, that "a third party cannot look behind the reorganization and examine the wisdom of the validity of the management considerations underlying the decision to reorganize."(45) Moreover, at the time it issues RIF notices the Employer may not be in a position to know the exact person to whom the separated employee’s work will be assigned, particularly if the Arbitrator adopts the Union’s proposal prohibiting the Agency from filling the needs positions until after the employees are separated. Its proposal that each employee’s RIF notice inform the employee of the RIF scores, with points attributable to each dimension of scoring, for all employees against whom that employee competed "would create a tremendous burden on the Agency," in contrast to notices contemplated by the RIF regulations, which "can be prepared relatively quickly." Finally, because employees are entitled to examine retention registers (which contain information in a number of areas), to the extent they have a bearing on a specific action taken against an employee, providing such information to them in their individual RIF notices is unnecessary.

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal. One major point where the two notice proposals diverge is in paragraph 1 which concerns information about the reorganization, including the identity of the employee who will take over the work of the non-continuing position. Given the decision that negotiability questions bar consideration of the Union's position about the relationship of the reorganization to the RIF, the Arbitrator cannot adopt the Union's proposal since it is not known whether the Employer will be in possession of the reorganization information required in paragraph 1 at the time notices are issued. As to the requirement for a "statement of all the evidence supporting the reason," it is very unclear what is intended. It is no secret that the RIF is being conducted due to a reorganization. The Arbitrator has no idea what the Union considers the "evidence" supporting the reorganization that would be relevant to a RIF appeal which, according to MSPB case decisions, does not examine the wisdom of the reorganization or the validity of management considerations in that regard. Consequently, the Arbitrator is in no position to order the requirement. Under the final offer authority delegated to the Arbitrator by the Panel, the Arbitrator, therefore, adopts the Employer proposal. It is noted that employees receiving RIF notices are not left without any avenue for learning the retention scores of others in their competitive level. The Employer acknowledges the employee's right to examine the retention register.(46)

48. ISSUE #68 (Union § 11 A, para. 2; Employer § IV A, para. 2)

When is an employee entitled to a revised notice of a RIF?

a. The Union’s Position

The Union proposes the following:

An employee is entitled to a new notice and notice period of a least 120 calendar days if the Agency decides to take a more severe RIF action than specified in the original notice with respect to that employee. A new notice is not required when the Agency takes a lesser action than specified in the original notice.

The real issue here, i.e., how long the notice period should be in cases where the Employer decides to take more severe RIF action than specified in the original notice, should be controlled by what the Arbitrator orders on the length of the original notice period (Issue #66). In this regard, if a 120-day original notice period is mandated, then the Arbitrator "is virtually bound to make this revised notice 120 days." This is because, otherwise, "a crafty employer would issue an original notice of 120 days, but then promptly withdraw it to propose more severe action because the notice period would then be cut to 60 days." Thus, the Arbitrator should be guided on this issue by what she imposes on the parties in Issue #66.

    b. The Employer’s Position

    The Employer proposes the following:

An employee is entitled to a new notice period of at least 60 calendar days if the Agency decides to take a more severe RIF action than specified in the original notice with respect to that employee. A new notice is not required when the Agency takes a lesser action than specified in the original notice.

Its proposal for a 60-day notice period if the Agency decides to take a more severe action against an employee than specified in the original notice accords with the RIF regulations at 5 C.F.R. 351.805. The reasons why a 120-day period for revised notices is unwarranted were provided in response to the Union’s proposal on Issue #66. Among them are the Employer’s security concerns, and the tendency for employees adversely affected by a RIF to be unproductive, and all the more so if the action to be taken is severer than originally stated. Further, "employees receive no real advantage from a 120-day versus a 60-day additional notice period."

CONCLUSIONS

    In line with the conclusion reached on Issue #66, the Arbitrator adopts the Employer's proposal.

49. ISSUE #69 (Union § 11 A, para. 3; Employer § IV A)

Union Statement of the Issue:

Under what conditions will employees be allowed to use leave to extend their employment to qualify for retirement?

Employer Statement of the Issue:

How will employees be allowed to use leave to extend their employment to qualify for retirement? Further, regardless of leave, will employees be given an extended notice period to qualify for retirement? (U-S 11 A, para. 2 and M-S IV A, para. 3)

a. The Union’s Position

The Union proposes the following:

Any employee who would qualify for retirement with a reasonably longer notice period will be given that period to enable him or her to retire. Similarly, employees will be allowed to use all appropriate leave, e.g., annual, LWOP, to reach a date on which they qualify for retirement.

The type of leave employees may use to extend their time "on the rolls" beyond the normal RIF notice period is controlled by OPM regulations. Its proposal is intended to ensure that no matter what type of leave OPM authorizes now or during the term of this agreement, employees would be permitted to use it. By listing only sick and annual leave as those which would be authorized, however, the Employer’s proposal is more likely than the Union’s to "create a charge of disparate treatment of IRS employees versus other Agency employees should the OPM allow more than annual and sick leave." The Employer’s wording also refers to the impact of a 1997 spending act which generally is revised each year, providing yet another reason why the Union’s "is the most viable."

    b. The Employer’s Position

    The Employer proposes the following:

The use of exceptions to the order of release regarding sick and annual leave will be in accordance with the provisions of 5 C.F.R. 351.608 and section 634 of the 1997 Omnibus Spending Act.

The Union’s proposal is nonnegotiable because it conflicts with 5 C.F.R. 351.601(a) and "goes far beyond what is permitted by regulation." That section of the OPM regulations prohibits an agency from releasing an employee from a competitive level while retaining in that level an employee with lower retention standing except when the lower standing employee is retained under an exception permitted by sections 351.607 or 351.608. None of the exceptions in those sections permit an employee to remain on the rolls for a "reasonably longer period to enable him or her to retire." The exceptions do, however, allow an agency to extend an employee’s separation date beyond the effective date of the RIF in order to permit the employee to use sick leave and accrued annual leave under certain specified and limited circumstances. Moreover, section 634 of the 1997 Omnibus Appropriations Bill provides that an employee who is being separated by RIF may elect to use annual leave to remain on the agency’s rolls after the date he or she otherwise would have been separated in order to establish initial eligibility for retirement or to acquire eligibility to continue health benefits into retirement. The employee must, however, have sufficient accrued annual leave to reach retirement to exercise this option. The part of the Union’s proposal that would permit employees to remain on LWOP after the RIF-separation date until they become eligible for retirement is also contrary to the regulations, and OPM also has stated that agencies lack the authority to retain an employee in a LWOP status past the RIF effective date for the purpose of gaining eligibility for discontinued service or optional voluntary retirement.

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal which references governing rules concerning making temporary exceptions to release order for the purpose of allowing an employee to achieve eligibility for retirement and other similar purposes. The Union proposal does not conform to regulatory language and would mislead employees about what is possible in this area.

50. ISSUE #70 (Union § 11 A 7, last sent.)

Whether the Employer will distribute a Union letter, attached to the RIF notice, explaining MSPB appeal rights?

a. The Union’s Position

The Union proposes the following:

Moreover, if NTEU chooses MSPB, the IRS will attach to each RIF notice a copy of a letter prepared by NTEU, if not jointly, advising employees about what is specifically appealable to MSPB and what still must be grieved.

While the Union would have other opportunities to communicate with employees if its other proposals are adopted, those are at early stages of the RIF process. Its proposed wording here is appropriate because it would occur after employees actually know who has been selected for a RIF and what will happen to them. Further, the employees affected at this stage "will have a much greater interest in learning about their rights." Adoption of the proposal would serve to lessen the possibility that Union stewards will be "besieged" with requests for one-on-one meetings, at least with respect to the questions it can address in this attachment to the RIF notice. The formal distribution of information "often and early" would also conserve the Union’s use of official time.

    b. The Employer’s Position

    The Employer proposes the following:

Appeal Rights. Within 10 workdays after the implementation of the agreement, NTEU may select the RIF appeal forum, either the MSPB or under the grievance/arbitration provisions of the national term agreements. Once one of the two is selected, all chapters will be bound by that choice. If NTEU fails to make a selection, RIF appeals will be processed in accordance with the grievance/arbitration provisions of the national term agreements.

This proposal satisfies the regulatory requirement at 5 C.F.R. 351.802(a)(6) that it inform employees that the RIF action may be appealed to either the MSPB or under provisions of the parties’ negotiated grievance procedure. If the Union wants to provide employees with additional information, the Arbitrator "should not force the Agency to join the Union in this endeavor." First, because a RIF "covers a vast array of different areas," developing an exhaustive list of matters appealable to MSPB would be "impractical," if not "impossible." The Agency would also bear the risk of providing employees, or of having the Union provide employees, with inaccurate information, and subject itself "to some form of equitable tolling of grievance time limits" if MSPB then rules that the matter is not within its jurisdiction, based on the fact that it "suborned" the inaccurate information. Finally, the Union’s proposal should not be adopted because it "suggests" the "possibility" that the Agency would have to delay the issuance of RIF notices if the Union’s statement is not completed by the time it is ready to send them.

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal. The Arbitrator has ordered adoption of a proposal giving the Union the right to have the Employer mail to employees a packet of informational material prepared by the Union. This is an appropriate means for the Union to offer legal advice on what is grievable and what is appealable. The Employer makes clear in its response to the Union proposal that it is uninterested in a joint letter due to concerns about liability should someone rely on the advice provided to his or her detriment. Forcing a joint letter, or requiring a Union-only letter with this kind of official mailing is not advisable in the Arbitrator's view, especially when the other avenue for written communication has been guaranteed. Employees can be advised of the importance of saving the Union mailing.

51. ISSUE #71 (Union § 11 C; Employer § IV A, first two sentences)

What notice will be sent to those employees displaced by the bump and retreat rights of others?

a. The Union’s Position

The Union proposes the following:

Employees selected for release from their Competitive Level after Round 1, e.g. someone displaced by a bumping or retreating employee, will be entitled to 60 days notice and that notice will contain all the information noted above.(47)

Unlike the Employer’s proposal, the Union’s focuses on those employees who are removed from a competitive level due to the exercise of bump and retreat rights by another employee "who was removed in Round 1 by the Employer." Under its proposed system, RIF’d employees would be given 120-days’ notice, and additional time to decide on which position they prefer to move in to using bump and retreat rights. Its proposal for a 60-day notice period would then apply to those employees who have been displaced after the completion of the previous steps. A shorter notice period than the 120 days granted to employees affected during Round 1 is appropriate in such circumstances. By contrast, the Employer’s approach, which is "high stakes" and "paternalistic," should be rejected because it "assumes that it knows what job is best for which employee and it assumes that everyone will accept the offer given."

    b. The Employer’s Position

    The Employer proposes the following:

Notice to Employees. Employees selected for release from a competitive level will be given a specific written notice at least 60 full calendar days before the effective date of release consistent with Article 28 of the NORD/NC agreements. (The notice period begins the day after the employee receives the notice.)

Its proposal on this issue is identical to its proposal under Issue #66. This is because a total notice period longer than 60 days is not warranted under the circumstances of the current RIF, particularly given all the efforts the parties have already made to address the adverse impact that would occur to affected employees. Additional arguments in support of its position, and the reasons the Union’s proposals for a two-step notice process should be rejected, can be found under that issue.

CONCLUSIONS

    Consistent with the Arbitrator's conclusion regarding Issue #66, the Employer's proposal is adopted.

52. ISSUE #73 (Union § 12 A; Employer § VI A)

Will the Employer be required to prepare applications concerning reemployment rights for employees?

a. The Union’s Position

The Union proposes the following:

The Employer shall provide employees with the proper application to establish eligibility under the Department of Treasury’s Reemployment Priority List (RPL) in accordance with 5 C.F.R. Part 330 -- Recruitment, Selection, and Placement. In order to be included on the reemployment priority list, employees must register by completing any necessary form(s). The Employer will prepare all the necessary forms for the employee using its records and present a completed package to the employee for modification or signing. At that time it will also give the employee a copy of all appropriate Federal, Treasury and IRS regulations outlining reemployment rights.

It is "unreasonable" for the Employer to require employees who have just lost their jobs through no fault of their own to fill out forms they have never seen before "without any training or on-site counseling." Instead, under its proposal the IRS would complete the application papers for each employee’s signature, if that is even required. In this way, employees would not lose the opportunity to acquire reemployment eligibility simply because, during such a difficult period in their work lives, mistakes were made on the form. Moreover, the Employer’s strict interpretation that OPM regulations prohibit it from doing this shows why IRS leaders have a "very low level of respect . . . in Congress and among taxpayers." With respect to the Employer’s nonnegotiability allegations, the Union modified its original proposal in response to those assertions.

    b. The Employer’s Position

    The Employer proposes the following:

The Employer shall provide employees with the proper application to establish eligibility under the Department of Treasury’s Reemployment Priority List (RPL) in accordance with 5 C.F.R. Part 330 -- Recruitment, Selection, and Placement. In order to be included on the reemployment priority list, employees must register by completing any necessary form(s).

Both parties’ proposals require the Agency to provide RPL application forms to employees, as specified in the applicable RIF regulations at 5 C.F.R. 330.202. The Union’s would go one step further, however, by requiring the Agency to prepare the application for the employee. Because an employee’s application must specify the conditions under which she or he would accept employment, such as the grade, occupation, and minimum hours of work per week, information the Agency is not in a position to know, requiring it to prepare the application "makes absolutely no sense."

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal. There are unresolved (and unresolvable for lack of FLRA precedent) issues concerning negotiability of the Union's proposal because of apparent inconsistency with OPM regulations. Having reviewed the application form (which is not lengthy or complicated) and hearing nothing suggesting that the Employer is not prepared to assist employees in filling it out, the Arbitrator is satisfied that it is better to adopt the Employer's proposal rather than defer a decision for a negotiability determination. The fact that management is obliged to "provide employees" with the reemployment application, with no requirement that there be a request first, means that no employee should somehow remain unaware of the application step, which is the most serious consideration to the Arbitrator.

53. ISSUE #74 (Union § 12 E)

What notice will be provided to employees who become eligible for reemployment?

a. The Union’s Position

The Union proposes the following:

Each employee with redeployment eligibility in a commuting area will be sent a monthly announcement by mail listing all the jobs in the commuting area that have been filled within the IRS during that time and the name, previous position, and retention standing of the employee selected. Positions within the IRS will be filled by granting priority consideration to those former IRS employees in order of retention standing.

This is intended to provide employees who are enrolled in the reemployment program regular updates concerning IRS vacancies. Because reemployment eligibles "become intensely interested" in program developments, adoption of the proposal would prevent both parties from having to respond frequently to their inquiries. In particular, "NTEU should not have to suffer an extraordinary imposition on its limited bank time because management wants to conduct a RIF and not tell employees what is going on with its efforts to fill jobs." The requirement placed on IRS "will be a minor inconvenience." If the process increases the number of people who are rehired, however, it would benefit the Government by, among other things, "promoting good will among the RIF survivors" who are likely to be very disturbed "to see new employees hired while their former co-workers are still waiting to be recalled."

    b. The Employer’s Position

    The Employer has no counterproposal. The first sentence of the Union’s proposal requiring the Agency to send employees with reemployment eligibility monthly announcements listing the positions filled within the IRS and the previous position and retention standing of the selected employee "makes absolutely no sense in the context of reemployment eligibility." This is because the Department of Treasury, not the IRS, maintains the reemployment priority list. Moreover, because the applicable regulations give Agency employees reemployment rights to Department of Treasury vacancies within the commuting area "no purpose would be served" by requiring it to send employees lists of positions filled only within the Agency. Concerning the proposal’s second sentence, it violates 5 C.F.R. Part 330, subpart B of the reemployment regulations to give former IRS employees priority consideration in order of retention standing for positions because such consideration "must be given equally to all Department of Treasury employees, as stated previously in connection with its response to the Union’s proposal in Issue #62.

CONCLUSIONS

    Having declined to adopt the Union's proposal on Issue #62, and for the reasons stated in the conclusions there, the Arbitrator declines to adopt the Union proposal on the merits. The last sentence raises the same problems as discussed in Issue #62. As to the first sentence, curiously the language does not say what the Union describes, that is, it does not require a list of open vacancies but only a list of "jobs ... that have been filled". The information listed seems to presuppose a reemployment system that is limited to IRS employees which, as discussed in relation to Issue #62, is problematic.

54. ISSUE #75 (Union § 12 F)

How will employees who are eligible for reemployment be selected?

a. The Union’s Position

The Union proposes the following:

Employees with reemployment standing who apply for a position with the IRS will be selected in order of retention standing for those positions for which they qualify. However, if the Agency wishes to use a rating and ranking alternative, it will follow the term contracts. In the meantime, no vacancy for which a reemployment eligible might apply may be filled. Reemployment eligible employees will be considered in order of their retention standing and any ties will be broken by IRS seniority.

Its proposal would provide reemployment eligible employees with a "systematic selection process" which, in its view, is the best way to persuade such employees that their applications have been fairly considered. In the absence of such an approach, employees who are passed over would undoubtedly file grievances, MSPB complaints, EEO appeals "or all three." In fact, because of the alleged user-friendly nature of the EEO complaint process, NTEU has two cases at FMCS dealing with agency initiatives to reduce the potential for such complaints, one of which is with IRS. Finally, although selection by retention standing is more appropriate than selection via seniority in a RIF situation, in recognition of the negotiability problems that sometimes arise with such proposals, the Union has given the Employer the option of using NORD IV’s competitive merit selection process. Concerning the Employer’s nonnegotiability allegations, it "misreads the Union proposal." Its terms are only intended to apply "if the Employer is going to select from reemployment eligibles,"(48) and it has modified its original proposal on this issue "to make this clearer."

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s proposal, on the other hand, is outside the duty to bargain because it violates management’s rights to hire and assign employees and make selections in filling vacancies, under section 7106(a)(2) of the Statute. By requiring the Agency to hire a RIF-separated employee so long as the employee applies for a vacancy, it "totally abrogates" management’s right to determine whether or not to fill that vacancy and, consequently, also does not constitute an appropriate arrangement.(49) Besides being inconsistent with its proposal on Issue #62 because it would give priority selection to employees within the commuting area while the latter gives priority selection to any position in the country, it also violates the reemployment priority regulations. In this regard, the part of the proposal requiring the Agency to follow competitive procedures in NORD IV should it fill vacancies by a competitive process is inconsistent with 5 C.F.R. 330.207(c) because the specific rating and ranking process referred to there "differs greatly from the rating and ranking procedures required" by Article 13, Section 5 of NORD IV. Finally, even if the Arbitrator imposes none of the Union’s proposals dealing with reemployment, the Agency will still have such a program by virtue of the requirements established in Government wide regulations.

CONCLUSIONS

    The Arbitrator declines to adopt the Union's proposal on the merits. Under other provisions of this agreement and applicable regulations (such as the Treasury Career Transition Assistance Plan outlined in Employer prehearing exhibit 19) employees separated in the RIF will be eligible to participate in the Treasury Department reemployment priority list, from which special selection priority will be by retention standing, which is what is favored by the Union, and which is arguably the import of the first and third sentences of its proposal. The Employer has raised issues of consistency with government wide regulation concerning other elements of the Union's proposal to which the Union has not responded, but the Arbitrator is not declining to consider the proposal on its merits. The Union's main argument for this provision is that a "systematic selection process" for reemployment of RIFed employees is needed, implying that there is none. But it has never explained why the Treasury CTAP is insufficient.

55. ISSUE #77 (Union § 14 A and B)

Will the parties establish an expedited process for resolving unfair labor practices charged in connection with a RIF?

a. The Union’s Position

The Union proposes the following:

In addition to the specific provisions of this agreement addressing dispute resolution by an outside neutral, the parties have agreed to appoint Mr. David Vaughn as an arbitrator to resolve any disputes under this agreement in which the Union alleges an unfair labor practice is involved or an employee was improperly passed over for release. He is also authorized to handle CTAP disputes that Mr. Hockenberry is not available to handle on a timely basis. The Union may make a direct appeal to him in writing and with simultaneous service on the IRS Labor Relations Officer, and he will thereafter set the procedures for the disposition of the dispute. He is instructed to follow the procedures of the parties’ term agreement pertaining to the expedited arbitration where practical. He will have all the powers of law to remedy the dispute, e.g., ordering a return to the status quo, issuing an order to stay an action pending complete resolution of the charge, etc.

If an NTEU National Counsel and an IRS Regional Counsel agree to use someone other than Mr. Vaughn to service disputes in their areas, they are free to do so. However, absent mutual agreement, Mr. Vaughn will handle all disputes arising from this agreement.

If its proposal is adopted, allegations of ULPs and challenges to "exception" decisions (cases where the Employer is alleged to have improperly passed over an employee for release) would be sent to a selected arbitrator to be resolved "on a fast path." This would "lower the costs to Government as well as the Union and employee," for example, in the area of back pay where "the longer it takes to impose a back pay order, the more retroactive salary is paid without any effort contributed by the employee." The parties have already agreed to such expedited procedures in NORD IV, so the proposal "should not have an adverse impact on the Employer." Nor does the "covered by" doctrine apply in circumstances such as these where parties have a past practice of modifying their negotiated grievance procedure, signifying that the term agreement was never intended to bar further negotiations over the topic. In this case, the parties previously changed the negotiated grievance procedure when "dealing with this very same topic -- RIFs."

    b. The Employer’s Position

    The Employer has no counterproposal. It has no obligation to negotiate over another expedited process for resolving the types of disputes referred to in the Union’s proposal when the matter is already covered by NORD IV. The Union’s contrary viewpoint that the "covered by" doctrine is bounded by the parties’ practice "is simply incorrect," as case law establishes that an agency has no legal obligation to negotiate over matters covered by a negotiated agreement, but may do so if it chooses.(50) Consequently, the Agency is not required to bargain over the Union’s proposal in the current circumstances. The existing contractual procedures have been in place "for almost 10 years, and have proven effective." While the parties’ negotiated procedure permitting the Union to file a grievance over an alleged ULP allows it to do so within 180 days, nothing prohibits it from filing within 1 day if it wants the process to proceed more quickly. Moreover, the expedited arbitration procedure contained in NORD IV was not designed to handle the types of "complex legal and factual issues involved" in the current RIF environment, and "would permit only a cursory review for what are very serious matters."

CONCLUSIONS

    The Arbitrator declines to consider the Union's Proposal. The Employer has urged that Article 42 of NORD IV, establishing an expedited procedure for resolving unfair labor practices, covers the subject of the Union's proposals and that it has no duty to bargain another procedure on this subject. The Union will have to seek a ruling from the FLRA that its proposal is not "covered by" existing agreements, the FLRA having indicated that it believes such issues should be resolved in that forum, on a case-by-case basis.

56. ISSUE #79 (Union § 15 C; Employer § VIII, sent. 2-5)

Will the agreement specify what negotiations rights the Union preserves, if any?

a. The Union’s Position

The Union proposes the following:

This is not a full and complete agreement and either party is free at any time to supplement this agreement should it become aware of changes in working conditions related to the RIF not known to one of the parties at the time of the RIF notice.

The proposed wording would protect the Union’s right to negotiate over any portions of this midterm change involving the RIF that the Employer has not brought to its attention through the specific notice required by law. In this regard, the FLRA has established that in order for an employer to fulfill its bargaining obligations under the Statute it must provide the union with a notice of intent that is "sufficiently clear and precise."(51) In the absence of such wording, the Union might be bound by what is "covered by" an agreement reached before specific notice was provided. Rather than being drawn into a debate regarding whether the agreement covers RIF matters which have previously been withheld from the Union, it wants "to clarify that it is the agreement of the parties that the Union has relinquished no rights other than over the issues expressly addressed in this agreement." Thus, if the Employer subsequently decides to change any aspects of the RIF not specifically brought to its attention, the Union would be free to exercise its rights to bargain in response to the specific notice of change.

    Part of what the Employer is proposing, on the other hand, is a "zipper clause." Such clauses "have been taken out of the Federal sector context" by the "covered by" doctrine referenced above, and efforts to get around that doctrine through their use have been "sternly discredited by the courts." Consequently, this portion of the Employer’s proposed wording is "outside the law," and the Arbitrator "should not consider or take jurisdiction" over it. Further, in addition to being in conflict with the "covered by" doctrine, because the parties have already addressed the Union’s right to negotiate midterm changes in NORD IV, it has no duty to negotiate over the Employer’s proposed zipper clause. Finally, the Union’s position is consistent with a recent Panel decision wherein it rejected a similar "zipper clause" proposal from an employer.(52) The Panel’s logic in that case now suggests that "perhaps the best course of action" for the Arbitrator would be to reject both parties’ proposals on the issue, and leave the dispute for resolution in other forums.

    b. The Employer’s Position

    The Employer proposes the following:

It will be implemented immediately and will remain in effect until the expiration of NORD/NC IV, unless all parties mutually agree to terminate or modify the agreement before that date. This is the full and complete agreement between the parties concerning RIF and all related matters contained herein. This agreement includes all matters raised by the parties and agreed in any form; all matters raised and withdrawn, and all matters either could have raised, but did not. All matters not covered by this agreement shall be retained rights of the Employer.

Preliminarily, there is no merit to the Union’s argument that it has no obligation to negotiate over the proposal because it is contrary to law and is already covered by NORD IV. The Union cites a court case in support of its argument that zipper clauses are contrary to law, Social Security Administration v. Federal Labor Relations Authority, 956 F.2d 1280, 1288-1289 (4th Cir. 1992); however, "nowhere in the decision did the Court state that zipper clauses were contrary to law," and the FLRA has "recognized and given effect to zipper clauses." As to the Union’s contention that the Employer’s proposal is already covered by Article 47, Section 3, A, of NORD IV, that section of the parties’ term agreement, which gives the Union the right to initiate mid-term bargaining, "is irrelevant" to the question of whether this RIF Agreement can contain a zipper clause. In this connection, the section would simply preclude the Union from initiating negotiations over another RIF agreement, but it does not address whether the Agency may take a unilateral action in a matter that the Union could have, but did not raise during the current RIF negotiations.

    The Employer’s proposal should be adopted because it would provide "finality" and bar further negotiations over RIF issues until NORD IV expires, and because the Union’s proposal would prevent "the completion of bargaining and, consequently, prevents the RIF from ever taking place." In this regard, the Union could "hold back" proposals over conditions of employment until after agreement is reached and then contend that it has "discovered a new matter" and force the Employer to negotiate over it. Further, should any regulations related to RIF change, it could demand bargaining, thereby undercutting the provisions of section 7117(a)(7) of the Statute. Finally, by requiring "endless bargaining," the Union’s proposal "contravenes the policies of stability and repose" which the courts and the FLRA have stated underlies the Statute.

CONCLUSIONS

    The Arbitrator adopts the Union's proposal, being unwilling to impose a waiver of any rights the Union has to initiate mid-term bargaining. To some extent the Employer proposal seems linked to its proposal in Issue #1 that the agreement here be a general RIF agreement applying to all RIFs until a new term agreement is negotiated. The Arbitrator declined to adopt its proposal in that regard.

DECISION

1. ISSUE #1 The parties shall adopt the Union proposal.

2. ISSUE #2 The Union shall withdraw its proposal.

3. ISSUE #3 The Union shall withdraw its proposal.

4. ISSUE #4 The parties shall adopt the Employer proposal.

5. ISSUE #6 The Union shall withdraw its proposal.

6. ISSUE #7 The parties shall adopt the Employer proposal.

7. ISSUE #8 The Union shall withdraw its proposal.

8. ISSUE #9 The parties shall adopt the Union proposal.

9. ISSUE #10 The Union shall withdraw its proposal.

10. ISSUE #11 The parties shall adopt the Employer proposal.

11. ISSUE #12 The Arbitrator declines to consider the Union proposal.

12. ISSUE #13 The parties shall adopt the Employer proposal.

13. ISSUE #15 The Union shall withdraw its proposal.

14. ISSUE #16 The Union shall withdraw its proposal.

15. ISSUE #25 The Arbitrator declines to consider the Union proposal.

16. ISSUE #26 The Arbitrator declines to consider the Union proposal.

17. ISSUE #27 The Arbitrator declines to consider the Union proposal.

18. ISSUE #28 The Arbitrator declines to consider the Union proposal; the parties shall adopt the Employer’s proposal.

19. ISSUE #29 The Union shall withdraw its proposal.

20. ISSUE #30 The Arbitrator declines to consider the Union proposal.

21. ISSUE #31

(a) The parties shall adopt the Union proposal.

(b) The parties shall adopt the Union proposal.

(c) The parties shall adopt the Union proposal.

22. ISSUE #32 The parties shall adopt the Employer proposal.

23. ISSUE #33 The Union shall withdraw its proposal.

24. ISSUE #34 The parties shall adopt the Employer proposal.

25. ISSUE #37 The parties shall adopt the Employer proposal.

26. ISSUE #38 The parties shall adopt the Employer proposal.

27. ISSUE #39 The parties shall adopt the Union proposal.

28. ISSUE #40 The parties shall adopt the Union proposal as modified.

29. ISSUE #41 The parties shall adopt the Employer proposal.

30. ISSUE #42 The parties shall adopt the Employer proposal.

31. ISSUE #43 The parties shall adopt the Employer proposal.

32. ISSUE #44 The parties shall adopt the Employer proposal.

33. ISSUE #45 The parties shall adopt the Union proposal.

34. ISSUE #46 The parties shall adopt the Employer proposal.

35. ISSUE #47 The parties shall adopt the Employer proposal.

36. ISSUE #48 The parties shall adopt the Union proposal.

37. ISSUE #50 The parties shall adopt the Employer proposal.

38. ISSUE #51 The Union shall withdraw its proposal.

39. ISSUE #53 The parties shall adopt the Employer proposal.

40. ISSUE #54 The parties shall adopt the Employer proposal.

41. ISSUE #55 The Arbitrator declines to consider the Union proposal.

42. ISSUE #57 The parties shall adopt the Employer proposal.

43. ISSUE #62 The Union shall withdraw its proposal.

44. ISSUE #63 The Union shall withdraw its proposal.

45. ISSUE #65 The parties shall adopt the Employer proposal.

46. ISSUE #66 The parties shall adopt the Employer proposal.

47. ISSUE #67 The parties shall adopt the Employer proposal.

48. ISSUE #68 The parties shall adopt the Employer proposal.

49. ISSUE #69 The parties shall adopt the Employer proposal.

50. ISSUE #70 The parties shall adopt the Employer proposal.

51. ISSUE #71 The parties shall adopt the Employer proposal.

52. ISSUE #73 The parties shall adopt the Employer proposal.

53. ISSUE #74 The Union shall withdraw its proposal.

54. ISSUE #75 The Union shall withdraw its proposal.

55. ISSUE #77 The Arbitrator declines to consider the Union proposal.

56. ISSUE #79 The parties shall adopt the Union proposal.

 

Mary E. Jacksteit

Arbitrator

August 11, 1997

Takoma Park, Maryland

 

ENDNOTES

42.The Employer cites 5 C.F.R. 210(b) and various MSPB cases to support its allegations.

43.In its pre-hearing brief, the Union dropped a parenthetical statement contained in its last best offer of May 14, 1997, and stipulated that it no longer cares “whether the severance pay is addressed in a separate statement attached to the Notice or included in the body of the Notice.”

44.Among other cases, the Employer cites Fort Bragg Association of Educators, National Education Association and Department of the Army, Fort Bragg Schools, 30 FLRA 508, 527 (1987), to support its contention.

45.Caselli v. Department of the Army, 27 MSPR 196 (1985).

46.Concerning the negotiability concerns raised by the Employer about paragraph 10, the Arbitrator considers the term "reasonable" to encompass management's interests.

47.The Union withdrew the last sentence of its final offer on this issue, concerning CTAP/CES letters, in its pre-hearing brief.

48.The Union cites American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1981) to support its position.

49.Among the numerous FLRA cases it cites are KANG and International Brotherhood of Electrical Workers, Local 2080 and Department of the Army, U.S. Army Engineer District, Nashville, Tennessee, 32 FLRA 347 (1988).

50.Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. Federal Labor Relations Authority, 962 F.2d 48, 50 (D.C. Cir. 1992).

51.See Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio and American Federation of Government Employees, AFL-CIO, Local 1592, 41 FLRA 690, 698-99 (1991).

52.The Union refers to