[ v16 p904 ]
The decision of the Authority follows:
16 FLRA No. 124 INTERNAL REVENUE SERVICE (DISTRICT, REGION, NATIONAL OFFICE UNITS) Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case Nos. 3-CA-2206 3-CA-2876 DECISION AND ORDER The Administrative Law Judge issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices, and recommending that the Respondent be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent and the Charging Party filed exceptions to the Judge's Decision. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommended Order. ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Internal Revenue Service shall: 1. Cease and desist from: (a) Failing and refusing to negotiate in good faith with National Treasury Employees Union, its employees' exclusive collective bargaining representative, by declaring nonnegotiable the proposals made by National Treasury Employees Union on March 26, 1981, as explained to the Federal Service Impasses Panel on April 7, 1981 by Frank Ferris, National Treasury Employees Union's Director of Negotiations, concerning staffing the Commodity Tax Shelter and Windfall Profit Tax programs. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Upon request of National Treasury Employees Union, the employees' exclusive collective bargaining representative, negotiate, to the extent consonant with law and regulations, concerning staffing of the Commodity Tax Shelter and Windfall Profit Tax programs. (b) Post at its National Office, Regional Offices and District Offices copies of the attached Notice, on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Commissioner, Internal Revenue Service, or his designee, and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and all other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Federal Labor Relations Authority's Rules and Regulations, notify the Regional Director of Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. Issued, Washington, D.C., December 18, 1984 /s/ Henry B. Frazier III Henry B. Frazier III, Acting Chairman /s/ Ronald W. Haughton Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail and refuse to negotiate in good faith with National Treasury Employees Union, our employees' exclusive collective bargaining representative, by declaring nonnegotiable the proposals made by National Treasury Employees Union on March 26, 1981, as explained to the Federal Service Impasses Panel on April 7, 1981 by Frank Ferris, National Treasury Employees Union's Director of Negotiations, concerning staffing the Commodity Tax Shelter and Windfall Profit Tax programs. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL upon request of National Treasury Employees Union, our employees' exclusive collective bargaining representative, negotiate, to the extent consonant with law and regulations, concerning staffing of the Commodity Tax Shelter and Windfall Profit Tax programs. (Agency or Activity) Dated: By: (Signature) (Title) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority whose address is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8452. -------------------- ALJ$ DECISION FOLLOWS -------------------- INTERNAL REVENUE SERVICE (DISTRICT, REGION, NATIONAL OFFICE UNITS) Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case Nos. 3-CA-2206 3-CA-2876 William L. Bransford, Esq. and David Pryor, Esq. For the Respondent Joseph V. Kaplan, Esq. For the Charging Party Clara A. Williamson, Esq. For the General Counsel Before: SALVATORE J. ARRIGO Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq., (herein referred to as the Statute). Upon unfair labor practice charges filed by the National Treasury Employees Union (herein referred to as the Union or NTEU) on March 31, 1981 and September 9, 1981 against the Internal Revenue Service (herein referred to as Respondent or IRS), the General Counsel of the Authority, by the Regional Director for Region 3, issued an Order Consolidating Cases, Complaint and Notice of Hearing on October 9, 1981. The Complaint alleged that on or about March 26, 1981, and thereafter, Respondent failed and refused to bargain in good faith with the Union concerning selection procedures for the staffing of work groups for Respondent's Windfall Profits Tax Program and Commodity Tax Shelter Program. A hearing on the Complaint was conducted on December 8, 1981 in Washington, D.C. at which time all parties were represented by counsel and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses, and argue orally. Excellent briefs were filed by counsel for all parties. Upon the entire record in this matter, my observation of the witnesses and their demeanor, and from my evaluation of the evidence, I make the following findings of fact, conclusions of law and recommendations: Chronology of Events At all times material herein, the Union has been the exclusive collective bargaining representative for various professional employees located in Respondent's District, Regional and National offices. The Commodity Tax Shelter Program On August 11, 1980 Respondent notified the Union of its intent to develop and implement Commodity Tax Shelter (CTS) work groups within the agency's Examination Division which would specialize in tax shelter revenue issues. These work groups were to be established in 9 different District offices around the country and included a total of 14 revenue agents in each group. The notice stated it was anticipated the program would be operational by January 1, 1981. Respondent also stated it intended to staff bargaining unit revenue agent vacancies in these groups in the following manner: "1. Solicit volunteers from qualified revenue agents and reassign from among those volunteers. "2. If enough qualified volunteers are not available . . . use MDA III Article 7 competitive procedures. "3. If enough qualified revenue agents are not identified through #1 and #2 above, the remaining positions in the groups will be filled by reassignment." The Union was invited to submit its proposals in writing by August 29, 1981 if it wished to negotiate the matter and was offered an opportunity to be briefed on the subject. By letter dated August 20, 1981 the Union requested negotiations on the CTS program and on August 21 the Union received a briefing by IRS. During this meeting the Union's representative, Frank Ferris, NTEU Director of Negotiations, explained the Union's concerns relative to the establishment of these groups including the manner of selecting employees and their work locations. At this time IRS again notified Ferris that the CTS groups were to be operational by January 31, 1981. On August 29 the Union submitted a hand-written proposal on filling CTS vacancies. The proposal stated, in relevant part: "1. Vacancies in these groups will be filled as follows: "a. The employer will solicit volunteer applications from qualified revenue agents in all IRS offices. Solicitation will be done by a vacancy announcement which details the specific difference between this type of examination and normal examination work, e.g. little or no corporate tax return work. Unless the employer fills the vacancies with the most senior applicants (IRS seniority) or chooses all who volunteer, it will then use competitive contract procedures to select for the vacancies. Where not enough employees volunteer, the employer, if it wishes to fill the remaining vacancies, will reassign the least senior agent in that appointing office, unless there is just cause not to do so. * * * "3. After two years in this group any employee who wishes to be reassigned away from this work will be given every consideration by management to reassign him/her to more acceptable tasks. "4. This agreement may be renegotiated any time after it has been in effect for two years. "5. Any provision of this agreement may be grieved under the master contract . . . " The Windfall Profit Tax Program By letter dated June 19, 1980 IRS notified the Union of its intent to implement a plan which would establish work groups in some parts of the country for administering the Crude Oil, Windfall Profit Tax Act of 1980 (WPT). The letter indicated that examination of tax returns associated with the program would begin on a nationwide basis between November 1980 and February 1981 although a limited number of returns would be examined in the Southwest Region beginning in July 1980 by revenue agents who had a background in the oil and gas industry. Detailed information on the program was to be supplied to the Union around August 1, 1980. Further notice was supplied NTEU when on August 29, 1980 IRS informed the Union of its intention to establish "energy" groups which would affect all regions with the major impact falling upon the Southwest and Western regions. The ultimate decision as to whether a group would be established to perform the work would rest with each individual region. IRS stated it intended to select revenue agents for the WPT program by: "1. Soliciting volunteers and giving them first consideration. "2. Filling positions either by reassignment or competitive procedures if enough qualified agents are not identified through solicitation of volunteers." In this communication the Union was advised that selected agents would begin training sometime in October 1980 and it was anticipated that WPT groups would be operational by February 1981. The Union was also informed that if it wished to negotiate on the matter NTEU should present written proposals to IRS by September 15, 1980, and IRS would be available to brief the Union on the subject. Representatives of the Union, including Ferris, and Respondent's representatives met on September 11 at which time IRS briefed the Union on the establishment of WPT groups and its desire to have the program implemented immediately. Ferris stated that wished to submit proposals on the matter and requested Respondent delay implementation until he did so. Subsequent Conduct Concerning Both Programs On September 15, 1980 the Union submitted identical proposals relative to staffing the CTS and WPT groups. The proposals used the exact same language as the Union's August 29 hand-written proposal relating to the formation of CTS groups, supra. On September 17, 1980 IRS submitted its counter-proposals to the Union. Respondent's proposals regarding the CTS program provide in relevant part: "1. Management intends to fill bargaining unit revenue vacancies in these groups in the following manner: "A. Solicit volunteers from qualified revenue agents and reassign from among those volunteers. "B. If enough qualified volunteers are not available, Examination Division intends to use MDA III Article 7 competitive procedures. "C. If enough qualified revenue agents are not identified through 1A and 1B above, the remaining positions in these groups will be filled by reassignment. * * * "3. Since moving expenses will not be authorized, management intends to solicit qualified volunteers for reassignment within the immediate geographic vicinities of the nine (9) group locations . . . " As to the WPT program, Respondent's proposals stated, in relevant part: "1. Selection of revenue agents to examine WPT cases will be made in the following manner: "A. Solicit volunteers and give them first consideration. "B. If enough qualified revenue agents are not identified through solicitation of volunteers, positions will be filled either by reassignment or competitive procedures. * * * "3. Solicitation of volunteers for reassignment will occur district-wide for those locations where the WPT examination workload has been identified. If applicable, moving expenses will be provided in accordance with the Internal Revenue Manual . . . " Both the CTS and WPT proposals offered by IRS contained the following language: "7. All provisions of this agreement are subject to the current grievance procedures as are terms of regulations of the Employer covering personnel policies, practices and matters affecting work conditions, insofar as the subject matter of such matters would be grievable under the Internal Revenue administrative grievance procedure. (Note: upon the implementation of a new consolidated contract the scope of the grievance procedure contained therein will be precedent over the above)." On September 17, 1980 Ferris and Jack Ahern, a Labor Relations Specialist for Respondent, discussed the proposals by telephone. Ferris explained that NTEU's proposals were designed to give IRS a choice in using seniority or competitive procedures to staff the CTS and WPT groups. While indicating that the Union favored the use of seniority in staffing the groups, Ferris acknowledged that he could not force IRS to select seniority but could propose a choice consistent with a union proposal which the Federal Labor Relations Authority previously found negotiable in American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), at 610 (herein Wright-Patterson). /1/ Specifically, Ferris explained that the Union's proposal covered two situations: where there existed more volunteers than vacancies, IRS had the choice of filling the positions beginning with the most senior volunteer or using competitive procedures; where more vacancies than volunteers existed, IRS could select beginning with the least senior qualified employee to fill the remaining vacancies or fill the positions using competitive procedures. The parties again telephonically discussed the Union's proposals for staffing the CTS and WPT groups on September 25, 1980. Ferris represented the Union and Ahern and Susan Barlient, Respondent's Chief of Collective Bargaining Section and Ahern's supervisor, represented IRS. /2/ During the conversation Barlient informed Ferris that IRS wished to move ahead "very soon" on the CTS and WPT programs and wanted to make sure the parties were down to final positions. Barlient asked Ferris to explain his proposals and Ferris indicated that he construed his proposals as offering IRS a choice of procedures in selecting employees for the CTS and WPT groups in line with the Authority's decision in Wright-Patterson. Barlient remarked that she felt that the Union's proposal mandated seniority and Ferris outlined his proposal as he did to Ahern on September 17, supra. After further questioning by Barlient, Ferris offered to make explicit that which he felt was implicit in the proposal by specifically adding a sentence to the proposal which would state that the choice between using seniority or competition was the employers. Barlient eventually acknowledged that she now realized the Union was not attempting to mandate seniority in staffing the vacancies and told Ferris she would look into the entire matter and talk with him on the following day. The parties conversed again by telephone on September 26. Barlient informed Ferris that IRS had to make a decision on that day as to the procedure to use in filling the vacancies. She asked Ferris to explain again the Union's proposal. Ferris went over the proposal much the same as he did the previous day and Barlient responded that she felt the proposal still mandated seniority which was unacceptable to IRS, and accordingly the agency was going to declare the Union's proposal to be nonnegotiable that day. Barlient further stated that a letter to that effect would be delivered to the Union's Washington office immediately. /3/ Ferris protested Barlient's reversing her position of the previous day on the negotiability of the proposal and asked her how she could call the Union's proposal nonnegotiable in light of the Wright-Patterson decision. Barlient responded that as far as she was concerned Wright-Patterson needed to be relitigated. Ferris informed Barlient that he wanted his proposal to be "on the record" with IRS and even though IRS was taking the position that the Union's proposal was nonnegotiable he would hand deliver the proposal to her upon his return to Washington on the following week. On September 27, 1980 the Union received Respondent's written position on the Union's proposals declaring the proposals nonnegotiable in that they interfere with management's right to assign employees under section 7106(a)(2)(A) of the Statute and to assign work under section 7106(a)(2)(B) of the Statute. IRS further informed the Union that procedures for selection of employees for the two programs would be implemented on September 29. Ferris submitted on September 30, 1980 the proposals he had discussed with IRS on September 26 and 27. The proposals provided, in relevant part: "Vacancies in these groups will be filled as follows: "a. The employer will solicit volunteer applications from qualified revenue agents in all IRS offices. Solicitation will be done by a vacancy announcement which details the specific differences between this type of examination and normal examination work, e.g. little or no corporate tax return work. Unless the employer fills the vacancies with the most senior applicants (IRS seniority) or choose all who volunteer, it will then use competitive contract procedures to select for the vacancies. (Failure to fill the vacancies at this point will permit the employer to then use alternate selection procedures.) "b. Where not enough employees volunteer to fill the vacancies, the employer, if it wishes to fill the remaining vacancies, will reassign the least senior qualified employee in the same appointing office as the vacancy to the position, or the employer will automatically consider all qualified employees in the same appointing office as the vacancy through the competitive procedures of the contract (no applications are required). The choice to use one or the other is the employers. "c. The involuntary reassignment from one appointing office to another will be used to fill these vacancies only as a last resort, i.e. after all other procedures have been used . . . " Selection of employees for work in the programs was in progress by early to mid-October 1980. On October 14, 1980 Ahern and Ferris discussed the staffing of the CTS and WPT vacancies and Ahern proposed that in selecting volunteers for these programs IRS would consider the seniority of volunteers. Ferris rejected this proposal and Ahern notified Ferris that his proposals of September 30 were unacceptable to the IRS. By letter to Ferris dated November 26, 1980 IRS confirmed its position on the matter per the October 14 discussion and indicated it was nevertheless willing to meet and continue to discuss the subject. In early November 1980 the Union filed two unfair labor practice charges alleging Respondent refused to bargain concerning the programs. Nevertheless, at Ahern's request the parties met again to discuss proposals on the programs on December 19, 1980. During this meeting Ahern acknowledged that IRS felt the Union's proposals of August 29 were nonnegotiable, but it was Respondent's position that the Union's proposals of September 30 which contained different wording, while "unacceptable", were not being declared "nonnegotiable." Ahern pointed to the language of Respondent's October 14 letter to the Union, supra, which referred to the Union's proposal as "unacceptable" and indicated IRS was still willing to negotiate on the matter. /4/ Ferris again explained that the Union's proposals for staffing would operate the same as that set out in Wright-Patterson, that is, management had the option of staffing the vacancies using seniority or competitive procedures. IRS presented the Union with its proposals which were similar to its earlier proposals except the latest proposal specifically stated that management would "give consideration to the most senior employees . . . from among those volunteers determined to be qualified by management." Ferris again rejected Respondent's proposal and Respondent again rejected the Union's proposal and it became apparent to the parties that resolution would require mediation. On December 22, 1980 the Union withdrew the unfair labor practice charges it filed in early November since Ferris now felt the parties were bargaining on the matter. Immediately after withdrawing the unfair labor practice charges Ferris invoked the services of the Federal Mediation and Conciliation Service (FMCS). The parties met before the FMSC on February 2, 1981. Although negotiations continued, the parties were unable to reach agreement and on February 5 Ferris requested the assistance of the Federal Service Impasses Panel (FSIP or the Panel). On March 25 and 26, 1981 the parties met in a prehearing conference with a factfinder from the FSIP. During the conference the parties were engaged in a dialogue clarifying their positions when it first became apparent to IRS that the Union's proposals not only covered filling unfilled vacancies but were to have retroactive effect regarding the already filled positions and a prospective effect as to any vacancies in the program which might occur in the future. /5/ Indeed, the Union amended its proposals at the prehearing conference to expressly state that their proposals would be applied retroactively as well as prospectively in filling all vacancies in the programs. /6/ The parties resolved some of their differences regarding the programs including adopting the language of Respondent's proposals of September 15, 1980, supra, relative to matters encompassed by any agreement concerning the CTS and WPT programs would be subject to the "current grievance procedures . . . (but) . . . upon implementation of a new consolidated contract the scope of the grievance procedure contained therein will be precedent over the above." /7/ However, the parties continued to reject each others proposals on basic staffing procedures and Respondent concluded that because the Union's prospective and retroactive application concept expanded the impact of any staffing agreement, it would rely on the staffing provisions of the newly negotiated NORD contract which it felt was applicable to CTS and WPT staffing and negated its obligation to bargain further on the matter. In any event, an FSIP factfinding hearing was scheduled for April 7. In a letter to the FSIP dated April 3, 1981, a copy of which was received by the Union, Respondent set forth its position that the Union's amended proposals of September 30, 1980, supra, were not negotiable. Respondent stated that the Union's proposals conflicted with the terms of MDA III and the NORD agreements and averred that in implementing the CTS and WPT programs, "the newly created positions were filled in accordance with prescribed management rights and the negotiated procedures of the master agreements (MDA III, NORD)." Respondent concluded that since a negotiability question existed the parties were not at a negotiation impasse and the issue therefore was not properly within the jurisdiction of the FSIP. Accordingly, Respondent advised it would not appear at the April 7 factfinding hearing. On April 6, 1981 Respondent filed with the FSIP a Motion to Continue/Adjourn Factfinding Hearing. In its motion Respondent explained that it had no further obligation to negotiate with the Union on the matters at issue since they were already covered under a recently negotiated master agreement with the union and a negotiation impasse under the Statute did not exist. The motion was denied by the Panel. Respondent made an appearance at the April 7, 1981 factfinding hearing for the purpose of contesting the FSIP's jurisdiction over the matter beyond which it declined to appear or participate in the hearing. The Factfinder proceeded with an ex parte hearing after which he declined to resolve the impasse and recommended that the negotiability issue presented by Respondent be resolved" in an appropriate forum." On August 10, 1981 the FSIP adopted the Factfinder's recommendation. Issues The General Counsel contends that Respondent refused to bargain in good faith in violation of section 7116(a)(1) and (5) of the Statute when it asserted on April 3, 1981 that no bargaining obligation existed relative to procedures for staffing the CTS and WPT programs. The Union takes the position that not only did Respondent violate the Statute as alleged by the General Counsel, but IRS also engaged in violations when in September 1980 it declared the Union's original proposal's nonnegotiable and proceeded to begin unilaterally staffing the CTS and WPT programs in October 1980. However, such latter contentions were neither alleged in the Complaint nor urged by Counsel for the General Counsel at the hearing. Therefore, I do not consider such allegations to be properly before me and accordingly make no findings or conclusions with regard thereto. Respondent contends it bargained in good faith and that in March 1981 and thereafter it had no obligation to bargain with the Union on its CTS and WPT proposals in that procedures for filling vacancies in such situations were fully set forth in the NORD agreement of January 1981. Respondent reasons that any obligation to bargain was extinguished after the Union entered into that agreement, much the same as a waiver of a bargaining right might occur. While acknowledging it did not raise this defense to negotiations between execution of the NORD agreement and its first meeting with the FSIP, essentially Respondent explains that the Union's adding retroactive and prospective application of its proposals before the Factfinder expanded the impact of the proposals to such a significant degree that Respondent was no longer willing to forego its rights under the NORD agreement. Further, Respondent now contends, raising this defense for the first time shortly before this hearing commenced, that the Union's proposals directly interfere with management's rights under section 7106 of the Statute to assign employees to positions and assign work, and therefore are not negotiable. /8/ Discussion I find and conclude that Respondent refused to negotiate in good faith in violation of section 7116(a)(1) and (5) of the Statute when, on April 3, 1981, it clearly conveyed to the Union that it had no obligation to bargain on the Union's staffing proposals relative to the CTS and WPT programs and thereafter failed to negotiate or allow FSIP resolution. The threshold question is whether the Union's proposals were negotiable under section 7106 of the Statute since if the proposals were not negotiable IRS would be privileged to refuse to bargain with the Union on April 3 even after having negotiated with the Union prior thereto. /9/ As found above, after IRS declared the Union's first set of proposals to be nonnegotiable under section 7106 of the Statute, the Union revised its proposals to conform to the proposal dealing with selection procedures in Wright-Patterson which the Authority found to be negotiable. That case held, inter alia, that a proposal which provided the agency with discretion is filling certain vacancies either by competitive procedures outlined in the parties agreement or by seniority did not directly interfere with the agency's basic right to assign employees under section 7106(a)(2)(A) of the Statute and was therefore negotiable. /10/ Although IRS representatives at first had some difficulty in perceiving any discretion in the Union's revised proposals, Ferris fully explained how he interpreted the proposals and intended the choice to operate. Ferris' wording in the proposals did not exactly tract that found in Wright-Patterson and could be interpreted in a variety of ways including compelling seniority selection before going to competitive procedures. However, Ferris' repeated explanation committed the Union to an interpretation which gave Respondent a choice of selection either by seniority or competitive procedures in the first instance and, by December 19, 1980 Respondent's representatives' apprehensions were dispelled. Ferris testified that the language in section 1B of his proposals that "The choice to use one or the other is the employers," supra, also applied to section 1A and such was clearly conveyed to Respondent. /11/ Regardless of the wording, the intent of the proposals was that the choice applicable in Wright-Patterson was applicable to the Union's proposals and at all times material Respondent was aware it had that choice. Indeed, Respondent did not raise its negotiability argument until shortly before the hearing in this case. In its brief Respondent acknowledges that the Authority would require an agency to negotiate a proposal that would provide management a choice between competitive selection procedures or the use of seniority. However, Respondent avers that the Union's proposals herein did not meet the Wright-Patterson "choice" standard of negotiability because they are so time consuming and administratively unfeasible that no actual alternative exists other than selection by seniority. If the Union's selection procedures as set forth in Section 1A and 1B of its proposals were followed, the combination of procedures would take several months to complete, which, Respondent asserts, would exceed twice the time IRS took to complete the process. Respondent's contention is premised on an explanation of the Union's proposal given by Ferris before the FSIP Factfinder on April 7, 1981, supra. Ferris stated that the Union's proposals would require all volunteers be first ranked by seniority and management would then have to consider selecting employees for vacancies on that basis. However, if management wished to pass over any employee or deviate from that list it could proceed to select on the basis of competitive procedures. If vacancies still existed, the employer could then involuntarily reassign the least senior employees at the location where the vacancies existed or involuntarily reassign employees to the vacancies based upon competitive procedures. /12/ Thus, in following the Union's proposals, substantial time would be required to compile the seniority list, consider placement from that list and then engage in competitive procedures perhaps twice. In sum, Respondent contends that to staff the program following the Union's proposals, other than by seniority, would result in inordinate administrative burdens resulting in a substantial delay in implementation which would materially diminish the effectiveness of the programs. Thus, Respondent avers the Union's proposals, in reality, left no viable choice for staffing other than filling the vacancies by seniority. Additionally, Respondent's desire to avoid such delay was based upon its attempt to comply with "congressional interest" in the timely implementation of the programs and to avoid enforcement problems occasioned by the running of the governing statutes of limitations. /13/ In the circumstances herein, I find the Union's CTS and WPT proposals provided Respondent with a choice of selection procedures within the meaning of the Authority's decision in Wright-Patterson and accordingly, are negotiable under section 7106 of the Statute. The cumulative staffing procedures espoused by the Union would doubtlessly require substantially more time to fill the positions than management's proposal. Indeed, adopting the Union's proposals to fill the positions might be so time consuming, onerous or otherwise administratively undesirable that if the matter were placed before the FSIP, the Panel would reject the Union's proposals. /14/ But, if it preferred, Respondent could choose to select employees for the vacancies without utilizing the entire procedure set out in the Union's proposals. Moreover, a substantial delay in implementing a program will not necessarily result in the Authority declaring a proposal nonnegotiable. /15/ It is well settled that the statutory standard in deciding the negotiability of a proposal is not whether the union's proposal would result in an undesirable or unreasonable delay so as to negate the exercise of a management right. Rather, the standard is whether adoption of the proposal will "prevent the agency from acting at all." /16/ I find that the Union's proposals presented IRS with a choice of procedures allowing IRS to staff the programs from alternative sources. /17/ Accordingly, in these circumstances I conclude that the Union's proposals were negotiable under section 7106 of the statute and I reject Respondent's arguments with regard thereto. /18/ Respondent's contention that its conduct did not show other than "good faith" bargaining as defined in section 7114(b) of the Statute is without merit. One of the requirements of section 7114(b)(2) is " . . . to discuss and negotiate on any condition of employment." By its conduct in refusing to bargain with the Union after the matter proceeded to the FSIP, I conclude Respondent failed to comply with its obligation to discuss and negotiate on a matter herein found to be a negotiable condition of employment. Further, specific evidence of an intent by Respondent to evade or frustrate its bargaining obligation is not required since intent is not an element of a section 7116(a)(5) violation in situations such as that presented herein. /19/ I further reject Respondent's contention that the terms of the NORD agreement govern the matter at issue herein and by executing the NORD agreement the Union waived its right to continue negotiations on the procedures for staffing the CTS and WPT programs. At the hearing Respondent offered testimony that provisions contained in the NORD agreement would apply to the procedures used in selecting employees when staffing programs such as the CTS and WPT programs. However, under MDA III, the predecessor agreement between the parties, the parties had a practice of periodically negotiating over reassignments or similar personnel actions to accommodate employees who were being affected by a reorganization. Respondent contends that its change of position regarding negotiating with the Union was based upon a consolidation of bargaining units preceding the NORD agreement. /20/ According to Respondent, under MDA III each district office constituted a separate bargaining unit but under NORD only one overall unit was recognized. Accordingly, Respondent contends that after the NORD agreement came into effect its terms controlled the staffing of the CTS and WPT positions and management's actions in staffing those positions complied with the terms of that agreement. Thus, Respondent's argument in effect suggests that by the execution of the NORD agreement the Union waived its right to pursue negotiations on staffing the CTS and WPT positions, an accepted practice under MDA III. It has been long and continuously held that a waiver can be established only by clear and unmistakable conduct. /21/ In the case herein no such "clear and unmistakable" conduct has been shown to occur. Thus, the negotiations on staffing began in September 1980 and the parties recognized during the December 22, 1980 discussion, that intervention by the Federal Mediation and Conciliation Service would be required. The services of the FMCS were invoked immediately after the December 22 discussion and the parties proceeded to mediation on February 2, 1981 and then to impasse proceedings on March 26. At no time to this point did either the Union or Respondent by its conduct indicate other than a desire to resolve their dispute following the practice established under MDA III, i.e. negotiation. Neither the language of the NORD agreement executed January 26, 1981, nor testimony relating to discussions giving rise to the NORD agreement nor at any other time, indicate that the dispute concerning the CTS and WPT programs was to be governed by NORD. Further, Respondent's proposals submitted on September 17, 1980 and unmodified thereafter, except to the extent that IRS committed itself to "give consideration" to seniority of those volunteering for the programs, contained language that provisions of the proposals would be governed by the then current grievance procedures noting that " . . . upon implementation of a new consolidated contract the scope of the grievance procedure contained therein will be precedent over the above (proposals)." Thus, even though a consolidated collective bargaining agreement was envisioned and IRS made explicit provision that the terms of the grievance procedure therein would apply, IRS did not make similar provision with regard to the precedence of the staffing provisions of the new agreement over those contained in MDA III. Accordingly, I conclude in all the circumstances that the execution of the NORD agreement did not constitute a waiver of the Union's right to negotiate to finality under MDA III the staffing procedures to be used vis a vis the CTS and WPT programs. Remedy The Union requests that all prior personnel actions taken with regard to staffing the CTS and WPT programs be declared a nullity and that any staffing proceed in accordance with whatever agreement is reached during future bargaining between the parties. /22/ Thus, the Union suggests that after the parties negotiate on the matter to finality, i.e. agreement or imposition of a resolution by the FSIP, the terms of the final outcome be applied retroactively. In my opinion an order directing retroactive application as the Union seeks would be inappropriate. The Union's proposals sought specific retroactive application of the CTS and WPT programs. By ordering retroactivity as part of the remedy I would essentially be imposing a term of a proposal on IRS, a matter I am not disposed to do on the facts herein. Moreover, in this particular case it is entirely possible that the parties will eventually find themselves before the FSIP for resolution of a bargaining impasse. In that event the FSIP would appropriately consider such a proposal and an order herein requiring retroactive application would limit the requisite flexibility and impair the broad range of options the FSIP necessarily requires to execute its statutory functions. Accordingly, the Union's request for retroactive application is denied. The Union also contends it is entitled to an award of costs and attorney's fees incurred in connection with the litigation of this case. The Union asserts authority for an award exists under section 7105, (Powers and Duties of the Authority), and section 7118, (Prevention of Unfair Labor Practices), of the Statute, and under the Equal Access to Justice Act, (EAJA) 5 U.S.C. 504. Without passing upon whether an award of costs and attorney's fees is permissable under the Statute, /23/ I conclude such an extraordinary remedy is not required in the circumstances of this case, noting particularly the ambiguities contained in the Union's written proposals of September 30, 1980, and the Union's conduct in subsequently modifying its proposals before the FSIP. With regard to the Union's request for an award under the EAJA, that statute and the Authority's implementing regulations /24/ indicate that the award provisions under the EAJA are available only to a respondent, other than the United States, who prevails against the General Counsel in an unfair labor practice proceeding. Therefore, the Union, as a charging party is not entitled to an award under the EAJA and its request is denied. Accordingly, in view of the entire foregoing and having concluded that Respondent has violated section 7116(a)(1) and (5) of the Statute, I recommend the Authority issue the following: Order Pursuant to section 2423.20 of the Federal Labor Relations Authority's regulations and section 7118 of the Statute, it is hereby ordered that the Internal Revenue Service shall: 1. Cease and desist from: (a) Failing and refusing to negotiate in good faith with National Treasury Employees Union, the employees' exclusive collective bargaining representative, by declaring nonnegotiable the proposals made by National Treasury Employees Union on March 26, 1981, as explained to the Federal Service Impasses Panel on April 7, 1981 by Frank Ferris, National Treasury Employees Union's Director of Negotiations, concerning staffing the Commodity Tax Shelter and Windfall Profits Tax programs. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Upon request of National Treasury Employees Union, the employees' exclusive collective bargaining representative, negotiate, to the extent consonant with law and regulations, concerning staffing of the Commodity Tax Shelter and Windfall Profit Tax programs. (b) Post at its National Office, Regional Offices and District Offices copies of the attached Notice marked "Appendix", on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Commissioner, Internal Revenue Service, and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and all other places where notices to employees are customarily posted. The Commissioner shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Federal Labor Relations Authority's Rules and Regulations, notify the Regional Director of Region 3, Federal Labor Relations Authority, 1111 18th Street, NW., Suite 700, Washington, D.C. 20036, in writing within 30 days from the date of the Order as to what steps have been taken to comply herewith. /s/ Salvatore J. Arrigo SALVATORE J. ARRIGO Administrative Law Judge Dated: March 5, 1982 Washington, D.C. APPENDIX PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail and refuse to negotiate in good faith with National Treasury Employees Union, the employees' exclusive bargaining representative, by declaring nonnegotiable the proposals made by National Treasury Employees Union on March 26, 1981, as explained to the Federal Service Impasses Panel on April 7, 1981 by Frank Ferris, National Treasury Employees Union Director of Negotiations, concerning staffing the Commodity Tax Shelter and Windfall Profit Tax programs. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL, upon request of the National Treasury Employees Union, negotiate to the extent consonant with law and regulations, concerning staffing of the Commodity Tax Shelter and Windfall Profit Tax programs. (Agency of Activity) Dated: By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Region 3, 1111 18th Street, NW., Suite 700, Washington, D.C. 20036 and whose telephone number is (202) 653-8452. --------------- FOOTNOTES$ --------------- /1/ The Wright-Patterson proposal referred to was Union Proposal III which stated: " . . . Unless the employer decides to use competitive procedures as outlined in Article . . . (Promotions), temporary assignment to higher or same grade/different duty positions shall be offered to qualified and available employees with requisite skills on the basis of seniority within the lowest organizational segment. If senior employees decline and it is necessary to detail an employee, the least senior employee shall be assigned." /2/ The version of what occurred during this conversation and that of September 26 is taken primarily from the testimony of Ferris. While Ahern's version was substantially in accord with Ferris' in material matters, Ferris' presentation was more direct and thorough. Further, although Barlient testified in this proceeding, no testimony was elicited from her relative to these conversations. /3/ During the above telephone conversations Ferris was away from the Union's Washington, D.C. office at a training conference in Minnesota. /4/ Indeed, at all times thereafter Ahern considered the Union's modified proposals to be negotiable. /5/ By the time of the prehearing conference there were approximately 117 employees assigned to the CTS program and 335 employees asked to the WPT program. Around 25 vacancies still remained to be filled on March 26. Positions were filled in both programs through vacancy announcements and competition, soliciting volunteers, and involuntary reassignments. /6/ Ferris acknowledged that at the prehearing conference he changed his proposals to include retroactivity but assumed that the prospective application of the original proposals was obvious. /7/ In fact, a "new consolidated contract" was arrived at between the parties, said agreement taking effect on January 26, 1981. The contract covered Respondent's National Office, Regions and Districts (referred to herein as the NORD agreement) and replaced the Multi-District Agreement (referred to herein as MDA III). /8/ Section 7106 provides, in relevant part: "(a) . . . nothing in this chapter shall affect the authority of any management official of any agency . . . to . . . assign . . . employees in the agency . . . (or) . . . to assign work . . . " /9/ See remarks of Rep. Ford at 124 Cong.Rec. H9646 (daily ed. Sept. 13, 1978) relative to management's bargaining obligations under the final version of section 7106(b)(1) which deals with matters negotiable at the election of an agency, wherein Rep. Ford stated: "I might say that not only are (agencies) under no obligation to bargain, but in fact they can start bargaining and change their minds and decide they do not want to talk about it any more, and pull it off the table. It is completely within the control of the agency to begin discussing the matter or terminate the discussion at any point they wish without a conclusion, and there is no appeal or reaction possible from the parties on the other side of the table." /10/ Wright-Patterson, supra, at 612-614. /11/ At no time did Respondent suggest that Ferris' proposals were ambiguous and should be reworded. /12/ Competitive procedures involve ranking employees from the most qualified to the least qualified based upon the performance evaluations of all employees in the appointing office. If an employee did not have a current evaluation on file at the time, one would have to be prepared by management. /13/ The WPT program had a three year statute of limitations on assessment. /14/ See e.g. Department of the Treasury, U.S. Customs Service, Washington, D.C. and National Treasury Employees Union, 81 FSIP 126, Panel Release No. 197 (1981), timing of performance appraisals; Department of Commerce, Maritime Administration, U.S. Merchant Marine Academy, Kings Point, New York and Local 3732, American Federation of Government Employees, AFL-CIO, 81 FSIP 77, Panel Release No. 197 (1981), time allocated for negotiations; and Veterans Administration Regional Office, Houston, Texas and Local 1454, National Federation of Federal Employees, 81 FSIP 12, Panel Release No. 178 (1981), site of negotiations. /15/ National Treasury Employees Union and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA 255 (1979). /16/ American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix - McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979); National Treasury Employees Union and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA 255 (1979); and Wright-Patterson, supra, at 623-626. /17/ Cf. National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 6 FLRA No. 97 (1981); American Federation of Government Employees, AFL-CIO, Local 909 and Department of the Army, Headquarters, Military Traffic Management Command, Washington, D.C., 6 FLRA No. 96 (1981); and American Federation of Government Employees, AFL-CIO, Local 2792 and Department of Commerce, Bureau of the Census, Washington, D.C., 6 FLRA No. 56 (1981). /18/ Cf. Department of the Air Force, U.S. Air Force Academy, 6 FLRA No. 100 (1981). /19/ Cf. Department of the Treasury, Internal Revenue Service and IRS Richmond District Office, 3 FLRA 18 (1980) and see also Division of Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA 158 at 172-173 (1982). /20/ Internal Revenue Service, Washington, D.C. and National Treasury Employees Union, 7 A/SLMR 497 (1977). /21/ Department of the Air Force, U.S. Air Force Academy, 6 FLRA No. 100 (1981); Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No. 2 (1981); Department of the Treasury, Internal Revenue Service, Cleveland, Ohio, 3 FLRA 656 (1980), absence of reference in agreement does not support a waiver; Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 6 FLRC 784 (1978), 8 A/SLMR 551, neither express terms of agreement nor discussions during negotiations established a waiver; U.S. Department of the Treasury Internal Revenue Service, New Orleans District, 6 A/SLMR 497 (1978) absent an express contractual provision, at least some discussion necessary to establish a waiver of a past practice; and NASA, Kennedy Space Center, Florida, 2 A/SLMR 566 (1972). /22/ Counsel for the General Counsel does not join in this request. /23/ Case law developed under the National Labor Relations Act, 29 U.S.C. 157, strongly suggests that awarding costs and attorney's fees is within the Authority's broad statutory remedial powers. National Labor Relations Board v. Food Store Employees Union, Local 347, etc. 417 U.S. 1, 94 S.Ct. 2074 (1974) and International Union of Electrical, Radio and Machine Workers, AFL-CIO and National Labor Relations Board et al., 502 F.2d 349 (1974), known as the Tidee Products case. /24/ 5 CFR 2430 et seq., Interim Rules and Regulations, Fed. Reg., Vol. 46, No. 191, October 2, 1981.