17:0192(30)CA - IRS, Denver District, CO and NTEU and NTEU Chapter 32 -- 1985 FLRAdec CA
[ v17 p192 ]
The decision of the Authority follows:
17 FLRA No. 30 INTERNAL REVENUE SERVICE DENVER DISTRICT, COLORADO Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 32 Charging Party Case No. 7-CA-1070 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Judge's Decision, and the Respondent filed an opposition to the General Counsel's exceptions. /1/ Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommended Order. /2/ ORDER IT IS ORDERED that the complaint in Case No. 7-CA-1070 be, and it hereby is, dismissed. Issued, Washington, D.C., March 12, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY Case No. 7-CA-1070 -------------------- ALJ$ DECISION FOLLOWS -------------------- Gary A. Anderson, Esquire For the Respondent Mr. Frank D. Ferris Craig Deats, Esquire: On Brief For the Charging Party James J. Gonzales, Esquire Daniel Minahan, Esquire For the General Counsel Before: WILLIAM B. DEVANEY Administrative Law Judge DECISION Statement of the Case This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101, et seq., /3/ and the Final Rules and Regulations issued thereunder, 5 C.F.R. 2423.1, et seq., was initiated by a charge filed on March 16, 1981 (Jt. Exh. 1). The Complaint and Notice of Hearing issued on August 28, 1981 (Jt. Exh. 2) which scheduled a hearing for November 17, 1981. By Order dated October 28, 1981, the hearing, scheduled for November 17, was indefinitely postponed (Jt. Exh. 4); by Order dated November 21, 1981 (Jt. Exh. 5(a)) the hearing, in this and other cases, was rescheduled for February 8, 1981; by Order dated January 20, 1982, the hearing, in this and other cases, was rescheduled for calendar call and hearing at 1:00 p.m. on April 19, 1982 (Jt. Exh. 5(b)); and on, or about, April 15, 1982, by conference call and agreement of all parties, the time of the calendar call, to be followed by the hearing in this case, was rescheduled for 9:00 a.m. on April 19, 1982, pursuant to which a hearing was duly held before the undersigned on April 19, 1982, in Denver, Colorado. All parties were represented at the hearing, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues involved, and were afforded opportunity to present oral argument. At the close of the hearing, May 19, 1982, was fixed as the date for mailing post-hearing briefs which time was subsequently extended, upon timely motion of Respondent and for good cause shown, to June 18, 1982. Each party, including the Charging Party, timely filed a most helpful brief, received on June 18, 1982, which have been carefully considered. Upon the basis of the entire record, /4/ including the Stipulation of Fact (G.C. Exh. 1) and my observation of the witnesses and their demeanor, I make the following findings and conclusions. The Issues The underlying issues are: (a) Respondent's right under the National Office, Regions and Districts Agreement (NORD) to make lateral reassignments; and (b) whether Respondent lawfully refused to negotiate as to certain proposals of the Union. There is no dispute that Respondent's decision to create a Tax Shelter Group in its Denver District Headquarters Office by consolidating tax shelter work, already being performed, under a single supervisor was a reserved management right; nor is there any dispute that Respondent was, pursuant to Sec. 6(b)(3) of the Statute, obligated to bargain on the impact of such decision, i.e., as the Statute provides, to negotiate "(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section. . ." There is a dispute as to whether Respondent was obligated to bargain concerning lateral transfers and the ultimate issue is whether, as alleged in Paragraph 4 of the Complaint, " . . . Respondent . . . failed and refused to bargain in good faith with the Union on the impact and implementation of . . . the formation of a tax shelter specialty group. . . ." (Jt. Exh. 2). Findings 1. The National Treasury Employees Union (hereinafter also referred to as "NTEU"), on March 27, 1980, was certified as the exclusive representative of all professional and non-professional employees of the Internal Revenue Service District Offices, Regional Offices and National Office, with certain exceptions not material to this proceeding (Jt. Exh. 2, Par. 3); and NTEU and the Internal Revenue service negotiated a national office, regions and districts agreement (NORD) effective January 26, 1981 (Jt. Exh. 8). 2. The action complained of occurred after January 26, 1981, the effective date of NORD, and is subject to NORD. 3. At the end of January or the beginning of February 1981, Mr. Sidney C. Smith, Chief, Examination Division, Denver District (Tr. 141), called Mr. Frederick J. Lockhart, Jr., then President of NTEU Chapter 32 (Tr. 49) and now Executive Vice President and Steward for Chapter 32 (Tr. 48), into his office and notified him that the Denver District would be forming a tax shelter group (Tr. 50, 51, 142, 143). 4. On February 5, 1981, Mr. Lockart sent a letter to Mr. Gerald Mihlbachler, District Director, and demanded formal negotiations on the substance and/or impact and implementation of the formation of the tax shelter group (Jt. Exh. 9). 5. By letter dated February 18, 1981, Mr. Mihlbachler responded to Mr. Lockhart's letter of February 5; stated that, " . . . we are merely reorganizing the Examination Division in order to bring similar work (the examination of tax shelter issues) under the supervision of the same group manager. Such work already exists throughout the Denver District, but needs to be concentrated within the organization. There is no increased workload, no additional 'program', and no additional staffing and/or grade structure associated with this reorganization" (Jt. Exh. 10); Mr. Mihlbachler further stated that, "The formation of our 'Tax Shelter Group', which will be located in the Denver Headquarters Office, will be accomplished by soliciting volunteers and/or reassigning employees already working such cases within the Denver metropolitan area" (Jt. Exh. 10); and Mr. Mihlbachler invited proposals "over impact and/or implementation" (Jt. Exh. 10). 6. By letter dated February 21, 1981, Mr. Lockhart submitted eight proposals (Jt Exh. 11). 7. In late February 1981, Respondent canvassed employees as to their interest in working in a tax shelter group, a large case group and another group (Tr. 19). The record does not show, nor has General Counsel or the NTEU contended, that Respondent prepared a roster of employees interested in working in a tax shelter group, or in any other group. Moreover, no vacancy announcement for the tax shelter group was posted (Tr. 18). 8. By letter dated February 25, 1981, Mr. Mihlbachler declared NTEU's proposals non-negotiable and, further, stated, " . . . it is our position that further initiatives from NTEU in mid-term bargaining concerning reassignment impact and implementation are not negotiable. . . ." (Jt. Exh. 12). Accordingly, Mr. Mihlbachler cancelled the negotiating session scheduled for February 26, and stated that Respondent would "proceed with implementation . . . as scheduled" (March 1, 1981) (Jt. Exh. 12). 9. By letter dated February 26, 1981, Mr. Lockhart protested Mr. Mihlbachler's letter of February 25; again demanded negotiations on NTEU's proposals of February 18; and requested deferral of implementation "until completion of the demanded negotiations and the reaching of a final and full agreement. . . ." (Jt. Exh. 13). 10. By undated letter (Jt. Exh. 14), Mr. Mihlbachler, replied that, as requested, he had reconsidered NTEU's bargaining proposals; that, "Since . . . you have raised the issue of changing the physical layout of office space, which is separate and apart from the reassignment issue, we are willing to discuss 'Union Proposal No. 5' . . . Therefore, we have rescheduled negotiations for Friday, March 6, 1981 . . . Our position on the remaining issues raised in your bargaining proposals remains unchanged from that taken in my letter of February 25, 1981. . . ." (Jt. Exh. 14). 11. The parties met on March 6, 1981, and negotiated on NTEU Proposal No. 5 and reached tentative agreement. Indeed, Mr. Lockhart stated "we initialed those changes" (Tr. 60); but Mr. Lockhart refused to finalize any agreement because "we had additional proposals that we wanted to negotiate . . . and without final and full agreement there was no agreement . . . ." (Tr. 60). Although I am aware that Mr. Lockhart testified that he asked, ". . . Will you negotiate with us on any procedures involved in the establishing of a tax shelter group?" and ". . . Will you negotiate with us on any impact, or potential impact, arising out of this change?" (Tr. 59, 186-187). and that Respondent declined, "The reason was the same as the reason that was given to me before because of the February 25, 1981, letter . . . From Mr. Mihlbachler and 'Because we believe that if we follow the NORD agreement, we have done everything we are obligated to do'" (Tr. 59). 12. Mr. Douglas W. Duvall, now Personnel Officer (Tr. 148), at all times material had been a Personnel Management Specialist handling labor relations and other employee programs for Respondent and was chief spokesman for Respondent on March 6, 1981. Mr. Duvall testified, in part, as follows: "A. As I recall, the first thing that we did when we sat down in our negotiating session was to try to clarify the positions, and Mr. Lockhart asked if we had modified our position in terms of the reassignment issue, and I said no, that we had not, that it was still our position that these had been negotiated. "I asked Mr. Lockhart, basically, what NTEU's position was in terms of which kinds of changes that he saw that may have come about that gave rise to this request to negotiate, and he replied basically that there were two major things that NTEU was looking at in these negotiations. First of all, that any time management underwent any kind of reorganization that involved bargaining unit employees, that it was subject to full negotiation, impact and implementation negotiation, including the methods, the procedures to follow in reassigning these employees. "Secondly, that in terms of any realignment of office space that came out of such a reorganization, they had full right to negotiate over impact and implementation of that office space realignment, prior to implementation. "Q. During those discussions, did you close the door on him with respect to submitting proposals, additional proposals, that would go to impact or implementation? "A. No, sir, we did not. . . . . (Tr. 154-155). 13. Mr. Irving A. Des Roches, employed by IRS since October 1, 1969, initially as the "de facto chief negotiator", and since 1972 officially as Chief Negotiator for IRS (Tr. 85). Mr. Des Roches served as negotiator and Spokesperson for IRS in the negotiation of the NORD Agreement. Negotiations for the NORD Agreement began in August 1978 (Tr. 108), and Mr. Robert M. Tobias was Chairperson and Chief Spokesperson for NTEU. Mr. Frank D. Ferris, Director of Training and Negotiations, NTEU, first personally appeared at the NORD negotiations in October 1979 (Tr. 106, 160), and when present either acted as co-spokesperson with Mr. Tobias or, when Mr. Tobias was not present, as spokesperson for NTEU. 14. Mr. Des Roches testified in great detail, and at considerable length, concerning the negotiating history, development, meaning, and intent of Article 7 of the NORD Agreement. I found Mr. Des Roches' testimony in this matter wholly credible. Mr. Ferris also testified at length concerning Article 7 and I found his testimony equally credible. Indeed, Mr. Ferris' testimony fully corroborated the testimony of Mr. Des Roches. /5/ 15. There is no doubt whatever that IRS wanted, and believed it had, the right unilaterally to make lateral reassignments. Consequently, IRS was very unhappy with the decision of the Assistant Secretary in Internal Revenue Service, Kansas City, Ogden, Chamblee, Philadelphia, Austin, Covington, Fresno, and Brookhaven Service Centers, Detroit Data Center and Martinsburg National Computer Center, A/SLMR No. 1074, 8 A/SLMR 741 (1978) (Res. Exh. 1); /6/ and the Bruce arbitration decision which "precluded management from having the right of laterally reassigning during the life of a roster" (Tr. 117, 163). In addition, the Authority, in National Treasury Employees Union and Internal Revenue Service, 7 FLRA 275 (1981), held inter alia, that NTEU's proposal that Article 7 (Promotions/Other Competitive Actions) applied to lateral transfers and was negotiable. 16. There is also no doubt whatever that IRS in the NORD negotiations specifically sought, through negotiations, to "undo the effect of decision 1074, which was a lead case in requiring management to bargain mid-term in reorganization requests and lateral reassignments. Another part of this objective was to undo the arbitrational decision (Bruce) which precluded management from having the right of laterally reassigning employees during the life of a roster" (Tr. 116-117). 17. Mr. Des Roches described a roster as follows: "A. A roster is a listing of employees who have been found highly qualified for a particular position, a position which management expects there will be a number of vacancies in during a six-month period. "Q. Is a roster related to the posting of a job? "A. Yes. The job is posted-- management does not say this but everybody knows that management expects a number of vacancies in that position during a six-month period and the people respond to the announcement. From the response, a roster is built on the basis of scores achieved by those who respond. . . ." (Tr. 87) Mr. Ferris, also described a roster as follows: "A. A roster is the product of a particular type of vacancy announcement. A vacancy announcement can be of two kinds; one which we call ad hoc which merely announces the immediate existing vacancy in a position, or it can be an announcement to set up a roster. In the latter case, there may or may not be an immediate vacant position but there's an expectation that over the next six months for the six months of the roster, there will be several positions to be filed in that classification. "A vacancy announcement can do one of two things and a roster is one of them. . . ." (Tr. 174-175). 18. There is no doubt whatever that, as the result of negotiations, IRS in the NORD Agreement received the right to make unilateral reassignment of employees at a post of duty. Mr. Des Roches so testified (Tr. 104-105; 107-108) and Mr. Ferris fully concurred, testifying, in part, as follows: "A. The sole difference-- if you're asking me to look at Article 7-- is the fact that we have changed the roster situation, as Mr. Des Roches testified. He came into bargaining, looking to undo the Bruce arbitration case. They have us an offer in the final stages of mediation that they would give us their consideration, it would be easy for them if they used rosters, but by establishing rosters, they didn't want to hurt themselves by barring lateral reassignments. So they asked us to, in effect I guess, give up the Bruce arbitration precedent and permit them to reassign during the existence of a roster. We made that deal. We conceded that. . . ." (Tr. 180-181). Earlier, Mr. Ferris testified, " . . . we permitted IRS to laterally reassign while a promotional roster was in existence. That right was granted in return for the first consideration right. . . ." (Tr. 161-162). and, "Q. . . . Can management effect a lateral reassignment without using competitive procedures, even though a roster has been established under NORD? "A. I'll explain it with a different perspective. For one example, if it's a lateral reassignment between post of duties, no, they have to use the competition that flows through seniority. If it's a lateral-- and you can see that through Article 29. If it's a lateral reassignment associated with the changes found to be negotiable, then Article 29, Section 3 comes in. /7/ If it's a lateral reassignment that does not have a change, it is not associated with moving from one post of duty to another, then, even if a roster is in existence, they are permitted to make that reassignment without using competitive procedures. You have to look at associated effects that the contract brings out. Is there a different post of duty; is there a change connected with it? It's a totality" (Tr. 177-178). 19. General Counsel, in his Brief, states, in part, as follows: " . . . Whereas the competitive procedures in MDA-3, Article 7 (the prior agreement, Jt. Exh. 6) applied when a roster was established, those procedures do not apply in NORD when a roster has been established. Respondent's argument seems to be, then, that the competitive procedures in NORD Article 7 do not apply to the type or reassignments involved in this case. The General Counsel concedes as much. (Emphasis supplied). Vacancy announcements were not posted for the Tax Shelter Group positions (Robbins, Tr. 18; 20-22) and the positions were filled by canvassing for volunteers, not by selecting from a roster. . . ." (G.C. Brief, p. 18). 20. Article 7, Promotions/Other Competitive Actions, of the NORD Agreement provides, in part, as follows: "Section 1 "The purpose of this Article is to ensure that all competitive promotions to bargaining unit positions and certain placement actions as set forth in Section 2 below are made on a merit basis by means of systematic and equitable procedures so that employees are given the opportunity to develop and advance to their full potential. The purpose of this Article is also to provide that Internal Revenue employees receive first consideration for all actions set forth in Section 2B below. /8/ To that end, the Employer and the Union agree to the following procedures (Emphasis supplied). "Section 2 "A "The terms of this Article will not apply to the filling of bargaining unit vacancies by lateral reassignment, demotion or reinstatement, except as set forth in B below . . . (Emphasis supplied). "B "The terms of this Article will apply to all other placement actions within the bargaining unit (Emphasis supplied). The following are examples of such actions: . . . . "6. Filling a position by lateral reassignment if a vacancy announcement has been posted, unless (1) unforeseen circumstances of an extraordinary nature become known subsequent to the posting of vacancy announcement; or (2) a roster has been established." 21. Following the negotiating session of March 6, 1981 Respondent by memorandum dated March 11, 1981, notified ten named individuals of their reassignment to the Tax Shelter Group, Group 1225, effective March 22, 1981. All affected individuals /9/ were in the Denver District (G.C. Exh. 2). /10/ Conclusions For the reasons set forth above, I find and conclude that IRS, through negotiations, in the NORD Agreement obtained the right to make unilateral reassignment of employees within a post of duty when no vacancy announcement has been posted. Accordingly, as IRS had obtained, under the NORD Agreement, the right to make lateral reassignments, Respondent's decision to laterally reassign employees to Group 1225, the Tax Shelter Group, was not a matter as to which Respondent was required to bargain and Respondent's issuance of its memorandum of March 11, 1981 (G.C. Exh. 2) did not violate either Sec. 16(a)(5) or Sec. 16(a)(1) of the Statute. In reaching this decision, I have given careful consideration to the decision of Judge Arrigo, in Internal Revenue Service (District, Region, National Office Units) and National Treasury Employees Union, Case Nos. 3-CA-2206 and 3-CA-2876) (OALJ-82-58) (March 5, 1982), and find it both legally and factually distinguishable from the present case and neither controlling nor determinative herein. First, the Commodity Tax Shelter proposal was made on August 11, 1980, and the Windfall Profit Tax proposal was made on June 19, 1980. In each instance, the union's proposals were made in 1980 under the predecessor agreement to NORD and Judge Arrigo specifically held, in part, as follows: "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 CTS and WPT programs. " . . . under MDA III, the predecessor agreement between the parties, the parties had a practice of periodically negotiating over reassignments of similar personnel actions to accommodate employees who were being affected by a reorganization. . . . " . . . 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 . . . 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. . . . . "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." By contrast, the lateral reassignments involved in the present case arose after the negotiation of the NORD Agreement and are governed solely by the NORD Agreement. Second, the record in this case shows that IRS sought in the NORD Agreement the right to make unilateral reassignment of employees at a post of duty. Third, the record in this case shows that NTEU, as Mr. Ferris testified, " . . . made that deal. We conceded that. . . ." (Tr. 181); " . . . we permitted IRS to laterally reassign while a promotional roster was in existence. That right was granted in return for the first consideration right. . . ." (Tr. 161-162); IRS sought to "undo the Bruce arbitration case" (Tr. 180) and NTEU agreed (Tr. 181). Consequently, while I do not disagree in the slightest with the decision of Judge Arrigo that nothing in the NORD Agreement purported to waive rights which existed under MDA III as to personnel actions instituted under MDA III, the record in this case is clear that IRS in the NORD Agreement sought and obtained the right to make unilateral lateral reassignments of employees even, as the record shows, when a roster has been established. Necessarily, as Mr. Des Roches testified, if IRS obtained the right in NORD to make lateral reassignments when a roster had been established, as Mr. Ferris conceded, then it also had the right to make such lateral reassignments when no roster existed. As noted, the record does not show that a roster existed in this case and, because a roster, as Mr. Ferris explained, is the product of a vacancy announcement and it is conceded that no vacancy announcement was posted, I would assume that no roster existed - indeed General Counsel admits that there were no selections from a roster (G.C. Brief, p. 18); nevertheless, even if a roster existed, the testimony, including that of Mr. Ferris, plainly shows that NTEU in the NORD Agreement " . . . permitted IRS to laterally reassign while a promotional roster was in existence. That right was granted in return for the first consideration right. . . ." (Tr. 161-162). While IRS in the NORD Agreement received the unilateral right to laterally reassign employees, and the exercise of that right imposed no obligation on Respondent to bargain about its lateral reassignment of employees to Group 1225, nothing in the NORD Agreement waived, or purported to waive, Respondent's obligation to bargain as to "appropriate arrangements for employees adversely affected by the exercise of any such authority . . ." (Sec. 6(b)(3)), although, by granting IRS the unilateral right to make lateral reassignments, NTEU necessarily gave up, or waived, the right to negotiate concerning procedures IRS would follow in the exercise of this contractual unilateral right. Stated otherwise, a contractual grant of authority to take unilateral action differs from mere reservation of a management right in that, by granting management the right to act unilaterally, the union has agreed not only that management may act, but, has agreed that the manner by which the right is exercised, including how, when, or whether the right is exercised, has been given wholly to management; whereas, a reservation of a management right constitutes only a right to act, not a grant of authority as to the manner by which the right is exercised. As to the latter, i.e., reservation of a management right, the union retains the right to negotiate concerning both the procedures management will observe (Sec. 6(b)(2)) and appropriate arrangements for employees adversely affected by the exercise of the authority (Sec. 6(b)(3)); but as to the former, i.e., the grant of authority to take unilateral action, the union, by its grant of unilateral authority, has agreed that the procedures management will observe are not negotiable because it has given those rights to management, and, accordingly, the union retains only the right to negotiate concerning appropriate arrangements for employees adversely affected by the exercise of the authority granted. Respondent's letter of February 25, 1981, in which it stated, in part, " . . . that further initiatives from NTEU in mid-term bargaining concerning reassignment impact and implementation are not negotiable. . . ." (Jt. Exh. 12). was in derogation of its obligation to bargain as to impact of its decision to laterally reassign employees and Respondent did thereby violate both Secs. 16(a)(5) and (1) of the Statute. However, NTEU, by letter dated February 26, 1981, protested Respondent's refusal to negotiate, stating, in part, that, " . . . Chapter 32 has previously and timely submitted written demands pursuant to your February 18, 1981, letter request. These proposals are hereby re-urged upon you" (Jt. Exh. 13). Respondent, by undated letter, stated that it had reconsidered NTEU's bargaining demands; that it found NTEU's Proposal No. 5, " . . . separate and apart from the reassignment issue, we are willing to discuss 'Union Proposal #5 from your letter of February 21, 1981. Therefore, we have rescheduled negotiations for Friday, March 6, 1981 at 8:00 a.m. to discuss that issue. Our position on the remaining issues raised in your bargaining proposals remains unchanged from that taken in my letter of February 25, 1981" (Jt. Exh. 14). In addition, Respondent in the same letter informed Mr. Lockhart that implementation would be delayed until after March 6, 1981 (Jt. Exh. 14). The parties did meet, negotiate, and reached agreement on March 6, 1981, on NTEU Proposal No. 5. There is no dispute that Respondent, on March 6, 1981, refused to bargain on: Union Proposal for Preamble; Union Proposals 1, 2, 3, and 4; and, because NTEU, although it initialed, i.e. agreed to, changes on Proposal No. 5, declined to conclude any agreement unless or until there was "final and full agreement" on all of its proposals (Tr. 60), Respondent asserts that NTEU proposals 6, 7, and 8 never became "ripe" for negotiations. As NTEU proposals 6, 7, and 8 presuppose the existence of an "agreement", which NTEU declined to conclude, and as the record does not show that NTEU separately addressed these proposals, no purpose would be served in considering these proposals further. Two questions remain: (a) was Respondent required to bargain on NTEU proposals 1, 2, 3, and 4 (and NTEU's proposal for Preamble)?; and (b) Did NTEU seek to bargain on any matter other than its written proposals? (A) NTEU Proposals (Jt. Exh. 11) Preamble. /11/ NTEU's proposal stated, in pertinent part that, " . . . The purpose of this agreement is to establish consistent procedures for assignment of employees to the Denver District Tax Shelter Group" (Jt. Exh. 11). The procedures sought by NTEU are set forth in proposals 1 through 4, discussed hereinafter. NTEU's objective clearly was to negotiate procedures for the assignment of employees; but by the NORD Agreement IRS had obtained the right unilaterally to make lateral transfers of employees. Proposal No. 1. This set forth the procedures for filling vacancies. Under other circumstances, I have no doubt that such proposal would be negotiable, indeed, substantially similar proposals were held to be negotiable under prior IRS-NTEU Agreements, Department of the Treasury, Internal Revenue Service, Jacksonville District, Jacksonville, Florida, 4-CA-446, OALJ-81-89 (April 15, 1981); Internal Revenue Service (District, Region, National Office Units), 3-CA-2206, 3-CA-2876, OALJ 82-58 (March 5, 1982); see, also, National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 6 FLRA 508, 514 (1981). But the right unilaterally reassign employees was a right IRS had sought in the NORD negotiations and was a concession granted by NTEU in the NORD Agreement in exchange for a right long sought by NTEU and offered by IRS. As Respondent's right to laterally reassign had been negotiated, Respondent was under no obligation to bargain on proposal No. 1. Proposal No. 1 was directed at the filling of vacancies, not to impact of Respondent's exercise of its negotiated right to make lateral reassignments. Proposal No. 2. This proposal was as follows: "The Tax Shelter Group initially, at least, will have its location in the Denver headquarters office. However, no employee, who is involuntarily reassigned . . . and who at this time of his/her reassignment is located in an office other than the one in which the Group is located, will be forced to relocate to the office when the Group is located. Any such employee will be permitted to physically remain in the group and office where he/she is then located, even though for purposes of group assignment and group function, such as group meetings, said employee's group will be the Tax Shelter Group." By seeking to restrict relocation from one group to another this proposal also sought to limit the contractually established right of Respondent to make lateral transfers of employees. Moreover, the proposal was not negotiable because it conflicts with Respondent's rights, pursuant to Sec. 6(a)(1) of the Statute, to determine its organization, American Federation of Government Employees, AFL-CIO, Local 3805 and Federal Home Loan Bank Board, Boston District Office, 5 FLRA No. 94 (1981); directly interferes with Respondent's right, pursuant to Sec. 6(a)(2)(A) of the Statute, to assign employees, Department of Defense v. FLRA, 659 F.2d 1140, 107 LRRM 2901 (D.C. Cir. 1981); and bargaining, pursuant to Sec. 6(b)(1) of the Statute, as to " . . . the number, types, and grades of employees or positions assigned to any organizational subdivision . . . ", is only "at the election of the agency" and Respondent elected not to negotiate concerning this proposal. Proposal No. 3. This proposal was as follows: "Assignment to the Tax Shelter Group will not adversely affect an employee's opportunities or consideration for developmental assignments, e.g. OJI, classroom instructor, detail to review, etc." The record does not show the relevancy of this proposal to impact of the lateral transfers of employees from various groups to the tax shelter group. Indeed, the wholly credible testimony of Mr. Sidney C. Smith, Chief, Examination Division, Denver District, showed that assignment to a specialty group does not affect promotional opportunities that, " . . . You have the same promotional opportunities whether you're in the specialty group or a general program group. . . ." (Tr. 141); and that assignment to the tax shelter group was not assignment to a specialty group, such as the excise tax group, for the reasons that: they continue to work income tax, and, while they concentrate on tax shelter, they have related pickup type returns, which may involve corporations, partnerships, or individuals, of the " . . . same type that they are working in the general areas. . . ." (Tr. 142). Nevertheless, if the subject matter of this proposal were material to impact of lateral assignments, it was already governed by the provisions of Article 12 of the NORD Agreement. Thus, by way of example, Article 12, Section 5A provides, "1. When training is given primarily to prepare employees for promotion, selection for the training will be made under the competitive promotion procedure. "2. In addition, selection of on-the-job instructors and classroom instructor positions will be made under the competitive promotion procedures" (Jt. Exh. 8, P. 12). General Counsel effectively concedes the applicability of Article 12, stating that, "It is true that the Union proposal raises issues embraced by the term 'training'. . . ." (General Counsel Brief, p. 12); but his assertion that "nothing in NORD Article 12 states it is the final expression of the parties on this subject nor is it conceivable that it embraces the particular needs of employees in every field of tax work" (General Counsel Brief, p. 12), is a non sequitur and his quotation from Internal Revenue Service, Case No. 3-CA-1067, OALJ 82-78 (1982), that nothing in the NORD Agreement, "waives the Union's right to negotiate the impact and implementation of specific training programs, or training in general" is a red herring since, clearly, this case involved no training program whatever. Indeed, "training" enters the picture only because the provisions of Section 5A which address, inter alia, OJI and classroom instructor selection, are part of Article 12 which is entitled "Training". Accordingly, Respondent was under no obligation to bargain as to Proposal No. 3. Proposal No. 4. The primary thrust of this proposal was to make the assignment to the tax shelter group rotational, i.e., employees would be rotated out of the tax shelter group within 27 months. In addition, NTEU requested, as part of Proposal No. 4, the adoption, in part, of the following language, from a prior local agreement, relating to training: " . . . The Employer recognizes that some employees will need training when they are rotated into income tax, therefore, formal and informal training will be available on a case by case basis." As to rotation, Proposal No. 4 conflicts with management's right to assign employees under Sec. 6(a)(2)(A) of the Statute. American Federation of Government Employees, AFL-CIO, Local 695 and Department of the Treasury, U.S. Mint, Denver, Colorado, 3 FLRA 43 (1980). While an agency may, pursuant to Sec. 6(b)(1) of the Statute, at its election, bargain on such assignments, Respondent elected not to negotiate on this proposal and whether it had elected on some prior occasion to negotiate on rotation of other assignments is immaterial, as, plainly, Respondent did not elect to bargain in this instance and, absent its election to negotiate, Respondent had no obligation to bargain. The local agreement referred to by NTEU was entered into in 1978 and, as the record shows, resulted from a management proposal to confirm an existing practice. Not only is the validity of the 1978 local agreement unquestioned but Article 29, Section 4 of the NORD Agreement provides that, " . . . Supplemental Agreements and/or memoranda of understanding regarding rotation would be incorporated into the Agreement with opportunity for NTEU to complete negotiations on the subject which are in progress on the effective date of the new Agreement" (Jt. Exh. 8, p. 28). Consequently, IRS in the NORD Agreement contractually "elected" to negotiate concerning rotation but only as to negotiations in progress on the effective date of the NORD Agreement, January 26, 1981. This "election" to negotiate did not extend to NTEU's Proposal No. 4 and Respondent expressly declined to bargain on Proposal No. 4. As to training, it is uncertain what was intended. Certainly, the language, from the 1978 local agreement, was ill suited, or as Respondent states (Respondent's Brief p. 18, n. 13), reference to rotation into "income tax" is misplaced for the reason that tax shelter work involves solely income taxes. In any event, training as involved was fully governed by Article 12, Sections 1 and 3 of the NORD Agreement and Respondent was not obligated to bargain further locally. I have given careful consideration to General Counsel's assertion that Respondent did not declare NTEU's proposals non-negotiable. Without deciding whether in an enforcement proceeding, there is a legal difference between a refusal to bargain on a proposal and a refusal to bargain because a proposal is deemed "non-negotiable," /12/ as the record shows that Respondent stated reasons for its refusal to bargain, I conclude that Respondent did effectively declare NTEU's proposals non-negotiable, ie.g. Respondent refused to bargain because NTEU's proposals were governed by the NORD Agreement, even though Respondent did not use term "non-negotiable" at least as to certain proposals. /13/ Thus, Respondent on March 6 stated, inter alia, /14/ that it would not negotiate, except on Proposal No. 5, because NTEU's proposals, except No. 5, were governed by the NORD Agreement, or, as Mr. Lockhart stated, Respondent asserted that, " . . . if we follow the NORD agreement, we have done all that we are obligated to do" (Tr. 58). Indeed, Respondent's statement in agreeing to negotiate as to Proposal No. 5, because it "is separate and apart from the reassignment issue" had further made it clear that, in its opinion, only Proposal No. 5 concerned impact while the other proposals concerned the reassignment issue. In truth, it is far from clear that in an enforcement proceeding the form of a refusal to bargain is significant. For example, a refusal to bargain by an agency is an unfair labor practice only if there is a refusal to bargain in good faith " . . . as required by this chapter" (Sec. 16(a)(5)) and an agency is not required to negotiate as to those rights reserved to management by Sec. 6(a) of the Statute. Therefore, in order to find an unfair labor practice, it must be determined that the agency was required by Chapter 71 to negotiate, regardless of the manner in which the refusal to bargain arises. (B) Did NTEU Seek to Bargain on Any Matter Other than Its Written Proposals? At the hearing, I rejected General Counsel's Exhibit No. 8, which was a portion of a handwritten letter by Mr. Lockhart, presumably written on March 6, 1981, after the negotiating session, although the date of the letter was also given as March 3, 1981 (Tr. 187). In his Brief, General Counsel has urged reconsideration of this ruling and states that, "It is submitted that the self-serving aspects of the letter are outweighed by its probative aspects" (General Counsel Brief, p. 11, n. 4). I have reconsidered my ruling and, in agreement with the request of the General Counsel, reverse my prior ruling and hereby receive General Counsel's Exhibit 8. The full text of General Counsel's Exhibit 8 is as follows: "Management's current position, we would consider any implementation an unfair labor practice. I also stated (also no less than twice) that our position was that Management had the right to make the change but that we had the absolute right to negotiate the substance of our proposals and that Management had a corresponding duty to negotiate on these proposals. "We submitted each of our proposals. Doug Duvall gave me specific responses to Union Proposals on the Preamble and #'s 1, 2, and 4. That position was that Management's position was the same as stated in Mihlbachler's 2/25/81 letter to me and that Management's obligation to negotiate was fulfilled as long as NORD followed. Doug Duvall and Sid Smith agreed that the same could be said of all remaining Union Proposals except Proposal #5 which we were negotiating. Suzanne and I asked the specific questions re Management's refusing to negotiate (1) any proposal pertaining to procedures being used to establish the tax shelter group and implement the change and (2) any proposal relating to the adverse effect on employees. Doug's answer was that these were correct statements and he again referred us to NORD and the 2/25/81 letter. Also in this regard Doug stated in answer to my specific question, that Management was not declaring any proposals non-negotiable but that they were just saying that these proposals were previously negotiated under NORD" (G.C. Exh. 8). That Mr. Lockhart raised the question of adverse impact bargaining is clear enough; but was his question directed only to NTEU's written bargaining proposals? I conclude, after careful review of the record, that his question concerned only NTEU's written proposals. Thus, the record shows: (a) Mr. Lockhart's initial testimony that he asked "Will you negotiate with us on any impact, or potential impact, arising out of this change" (Tr. 59), was substantially altered by his testimony or rebuttal, that he asked, "whether or not they were willing to negotiate any proposal relating to the adverse impact" (Tr. 186); (b) Mr. Lockhart's letter fully confirms his testimony on rebuttal and states that he asked "specific questions re Management's refusing to negotiate . . . (2) any proposal relating to the adverse effect on employees" (G.C. Exh. 8) to which Mr. Duvall responded "that these were correct statements and he again referred us to NORD and the 2/25/81 letter" (G.C. Exh. 8); (c) the fact that no proposal was ever made by NTEU except its written proposals of February 21, 1981 (Jt. Exh. 11); (d) Mr. Lockhart's letter further stated that, "Doug stated in answer to my specific question, that Management was not declaring any proposals non-negotiable but that they were just saying that these proposals were previously negotiated under NORD" (G.C. Exh. 8), which emphasized that, as Mr. Lockhart understood, "proposals" i.e. "these proposals" meant NTEU's written proposals; (e) Mr. Duvall's wholly credible testimony that he did not close the door with respect to additional proposals that would go to impact or implementation and that had additional proposals on impact or implementation been submitted they would have been considered; and (f) the fact that Respondent did negotiate on impact and implementation (Proposal No. 5). Perhaps Mr. Lockhart was left with an "impression" that further proposals "would be futile" (Tr. 187); but he made no proposal to test his impression. Certainly, Mr. Duvall's conviction was equally strong, and equally valid, that he had not "closed the door" on additional proposals. In the absence of a specific refusal to bargain there is no basis on which an unfair labor practice may be found. To be sure, Respondent refused to bargain on NTEU's Proposals 1 through 4, but for reasons set forth above, Respondent was not obligated to bargain on Proposals 1 through 4. Although not addressed by the parties, I have also considered whether the portion of Respondent's letter of February 25, 1981, in which it stated, in part, that " . . . further initiatives from NTEU . . . concerning reassignment impact and implementation are not negotiable . . . ." (Jt. Exh. 12), was relied upon by NTEU as the basis for not submitting additional proposals on impact and implementation; but the record does not show any such reliance. To the contrary, Mr. Lockhart made it clear that his "impression" was the result, solely, of Mr. Duvall's response to his two questions concerning NTEU's written proposals. While I have found that the evidence affirmatively shows that Mr. Lockhart directed his question concerning adverse impact bargaining to NTEU's written proposals, alternatively, the preponderance of the evidence fails to demonstrate that Respondent refused to negotiate on the impact of its decision by foreclosing submission of additional proposals addressing impact. It is conceded that NTEU did not make or submit any proposal other than its written proposals of February 21, 1981; Mr. Duvall's testimony that he did not "close the door" to additional proposals on March 6, 1981, was unequivocal; and, at most, Mr. Lockhart professed an "impression" that submission of additional proposals would be futile, notwithstanding that the parties did, in fact, bargain as to impact and implementation with regard to NTEU's Proposal No. 5. Having found that Respondent did not refuse to bargain in good faith as required by the Statute, it is recommended that the Authority adopt the following: ORDER The Complaint in Case No. 7-CA-1070 be, and the same is hereby, dismissed. WILLIAM B. DEVANEY Administrative Law Judge Dated: October 4, 1982 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ The Charging Party's exceptions were untimely filed and therefore have not been considered. /2/ The Authority specifically adopts the Judge's finding that the Charging Party waived its right to bargain over the lateral reassignment of employees within a post of duty, even where no roster had been established and no vacancy announcements had been posted. We find it unnecessary, in the circumstances of this case, to distinguish between the nature of the bargaining obligations arising under section 7106(b)(2) and (3) of the Statute, or to pass upon the Judge's findings with respect to the negotiability of the Charging Party's proposals. /3/ For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the Statute reference, e.g., Section 7116(a)(5) will be referred to simply as "16(a)(5)." /4/ General Counsel filed a Motion to Correct Transcript which I find wholly meritorious, and to which the other parties filed no opposition, and it is hereby granted. In addition, I note a further obvious error on page 10 line 17, of the transcript which I correct on my own motion. The transcript, is hereby corrected as follows: Page Line Error Correction 8 10 "succeeded" "preceded" 10 16 "of the" "and" 10 17 "rescinded" "refused" 14 10 "heart" "south" 29 15 "pat" "pay" 37 18 "revision" "division" 48 19 "the state" "estate" 55 7 "regional district" "regions and districts" /5/ Prior to testifying as a rebuttal witness, Mr. Ferris, although not an attorney, ably represented NTEU and conducted cross-examination. It is an undesirable practice for the same individual to act as representative of a party and in the same proceeding to become a witness for his party. Indeed, were Mr. Ferris an attorney, there might be ethical questions concerning such action since, as I am fully convinced, it was known well in advance that: (a) Mr. Des Roches would appear as a witness; and (b) that Mr. Ferris would almost certainly testify. Nevertheless, I recognize that it is sometimes unavoidable for a representative to seek to testify. I permitted Mr. Ferris to testify and, since there was no conflict between his testimony concerning the parties' action, intention, and decision concerning Article 7, I need not decide whether Mr. Ferris' dual capacity affected, in any manner, his credibility. This is not a procedure which I propose to condone or to permit except under the most unusual circumstances which I found to pertain in this case. /6/ See, also, Department of the Treasury Internal Revenue Service, Jacksonville District, Jacksonville, Florida, Case No. 4-CA-446, OALJ-81-89 (Chaitovitz, J., April 15, 1981). /7/ Article 29, Section 3, provides: "The Employer agrees to give affected employees fifteen (15) working days written notification of reassignments to a different post of duty" (Jt. Exh. 8, p. 28). /8/ It was for this underscored concession by IRS that Mr. Ferris testified, " . . . We made that deal (Emphasis supplied, Tr. 180-181). " . . . we permitted IRS to laterally reassign while a promotional roster was in existence. That right was granted in return for the first consideration right. . . . " (Tr. 161-162). /9/ G.C. Exhibit 2 appears to show a name, Mr. Ron Metcalfe, as having been deleted. Counsel for General Counsel stated that Mr. Metcalfe's name has not been deleted, that this was simply highlighting marks" Mr. Metcalfe was, and is part of Group 1225 (Tr. 26). /10/ Ms. Linda Robbins testified that she had stated that she was interested in working in the Tax Shelter Group " . . . if I could be assigned to a Boulder place of duty" (Tr. 20); that when she was informed in early March 1981, that she would be assigned to Group 1225, which would be located in the Denver Office, she filed a grievance, dated March 23 and an amended grievance dated March 27, 1981, which was settled at a meeting on April 8, 1981, pursuant to which, " . . . I could work in the Boulder Office" (Tr. 22). /11/ The parties do not separately address the Preamble, and, since it, like proposals 6, 7, and 8, is significant as a bargaining demand only in the context of an "agreement", it may be unnecessary to consider it further. I include it only because it directly states the purpose and objective of NTEU. /12/ Sec. 17(c)(1) of the Statute provides, in part, that: " . . . if an agency . . . alleges that the duty to bargain . . . does not extend to any matter, the exclusive representative may appeal the allegation to the Authority. . . ." Sec. 17(c)(3) of the Statute provides, in part, that: "(3) On or before the 30th day after the . . . receipt . . . of the petition . . . the agency shall - "(A) file with the Authority a statement - " . . . "(ii) setting forth in full its reasons for supporting the allegation. . . ." /13/ Mr. Duvall, although stating that Respondent felt Proposals 2 and 4 were non-negotiable because they interfered with management's rights (Tr. 157) stated that he did not declare proposals 2 and 4 non-negotiable (Tr. 157). /14/ In addition, in his letter of February 5, 1981, Mr. Lockhart had demanded " . . . formal negotiations on the substance and/or impact and implementation. . . . " (Jt. Exh. 9); Respondent by its letter of February 18, 1981, stated that it would entertain " . . . proposals which you may have over impact and/or implementation. . . ." (Jt. Exh. 10); Respondent in its letter of February 25, 1981, after review of NTEU's proposals (Jt. Exh. 11), stated that in the NORD Agreement, " . . . we have specifically set out the situations in which reassignments are subject to the negotiated agreement. Therefore, it is one position that further initiatives . . . concerning reassignment impact and implementation are not negotiable. . . ." (Jt. Exh. 12); and in its undated letter, following Mr. Lockhart's letter of February 26, 1981 (Jt. Exh. 13), Respondent stated that it had, as requested, reconsidered NTEU's bargaining proposals and had concluded that, " . . . the physical layout of office which is separate and apart from the reassignment issue" was negotiable (Jt. Exh. 14).