[ v17 p731 ]
The decision of the Authority follows:
17 FLRA No. 103 INTERNAL REVENUE SERVICE Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 3-CA-20156 DECISION AND ORDER The Administrative Law Judge issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in the unfair labor practice alleged in the complaint and recommending that it be ordered to cease and desist therefrom and to take certain affirmative action. Thereafter, the Respondent filed exceptions to the Judge's Decision and a supporting brief, and the Charging Party filed an opposition to the Respondent's exceptions. Each of the following organizations filed an amicus curiae brief: The Office of Personnel Management (OPM); the Department of Agriculture (DA); the Department of Health and Human Services (HHS); the Department of the Interior (DOI); and the Department of Energy (DOE). /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 in this case, the Authority hereby adopts the Judge's findings, conclusions and recommended Order, as modified herein. The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate concerning proposals submitted by the Charging Party during the term of existing collective bargaining agreements which were not related to any changes initiated by the Respondent. The Judge found that the Respondent violated the Statute as alleged in the complaint, concluding that the duty to bargain in good faith imposed upon agencies by the Statute includes the requirement to bargain over proposals initiated by a union during the term of an existing collective bargaining agreement concerning subjects not specifically waived by the union during negotiations or included in the existing agreement. The Judge supported this latter conclusion by relying upon precedent under the National Labor Relations Act, most especially the case of Jacobs Manufacturing Company, 94 NLRB 1214 (1951), enf'd, 196 F.2d 680 (2d Cir. 1952). The Authority does not agree. The issue here presented is whether there exists an obligation under the Statute to bargain over proposals initiated by a union during the term of an agreement which are unrelated to management-initiated changes in conditions of employment. The findings and purpose of the Statute are set forth in section 7101. /2/ In that section, Congress stated that the statutory protection of the right of employees to bargain collectively safeguards the public interest, contributes to the effective conduct of public business, and facilitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment. Congress therefore concluded that collective bargaining in the civil service is in the public interest. /3/ At the same time, Congress also noted in that section that the provisions of the Statute should be interpreted in a manner which is consistent with the requirement of an effective and efficient Federal Government. In order to understand the extent of the right to bargain collectively in the context of the requirement of an effective and efficient Government, it will be necessary to address the meaning of collective bargaining and the rights and obligations associated therewith. Collective bargaining is defined in section 7103(a)(12) of the Statute as follows: Sec. 7103. Definitions; application (a) For the purpose of this chapter-- . . . . (12) "collective bargaining" means the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession(.) The rights and obligations of parties to engage in collective bargaining under the Statute are set forth in section 7114. Of significance here are the following provisions of this section: Sec. 7114. Representation rights and duties (a)(1) A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements. . . . . . . . (4) Any agency and any exclusive representative in any appropriate unit in the agency, through appropriate representatives, shall meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement. . . . . . . . (b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation-- (1) to approach the negotiations with a sincere resolve to reach a collective bargaining agreement; . . . . (5) if agreement is reached, to execute on the request of any party to the negotiation a written document embodying the agreed terms, and to take such steps as are necessary to implement such agreement. It is apparent from the specific language of these provisions of the Statute that a labor organization which is an exclusive representative of employees in an appropriate unit and the agency in which the employees are employed have a mutual obligation to negotiate in good faith in an effort to reach a collective bargaining agreement with respect to conditions of employment affecting employees in the unit. When these provisions of the Statute are read in conjunction with the Statute's findings and purpose as set forth in section 7101, it is clear that a goal of collective bargaining is to facilitate and encourage the amicable settlement of disputes between employees and their employer concerning conditions of employment and that this can best be achieved by the negotiation of collective bargaining agreements as appropriate under applicable law. Thus, stability at the work place with respect to employees' conditions of employment can be attained by the fulfillment of the mutual obligation of the parties to bargain in good faith in an effort to reach a collective bargaining agreement. Moreover, to the extent that the parties are required to adhere to the specific conditions of employment mutually established in their agreement during the life of such agreement, stability at the work place is thereby fostered. /4/ While Congress found collective bargaining in the public interest, in so doing, Congress further expressed an intent to limit the bargaining obligation over union-initiated proposals to situations where parties are negotiating a basic collective bargaining agreement. In this regard, the Senate Committee on Governmental Affairs, in explaining section 7215(a)(1) /5/ of the Bill (S. 2640), which is substantially identical to the language contained in section 7114(a)(1) of the Statute, supra, stated as follows: /6/ The parties have a mutual duty to bargain not only with respect to those changes in established personnel policies proposed by management, but also concerning negotiable proposals initiated by either the agency or the exclusive representative in the context of negotiations leading to a basic collective bargaining agreement. Thus, by this statement, Congress intended that where parties are negotiating a basic collective bargaining agreement, the bargaining obligation shall exist with respect to negotiable proposals initiated by either agency management or the exclusive representative. However, outside this context, Congress intended the bargaining obligation to exist only with respect to changes in established conditions of employment proposed by management. /7/ This distinction indicates that other than negotiations leading to a basic collective bargaining agreement, there is no obligation to bargain over union-initiated proposals. Moreover, as previously noted, various provisions of the Statute emphasize the importance of negotiating collective bargaining agreements for the purpose of facilitating and encouraging the amicable settlement of disputes concerning conditions of employment in an effort generally to promote stability at the work place. Were the Authority to now hold that there is a statutory obligation for agency management to bargain at any time during the life of a collective bargaining agreement over union-initiated proposals which are unrelated to changes initiated by agency management, the ability of the parties to rely upon such basic agreements as a stable foundation for their day-to-day relations would be diminished. Parties would be discouraged from engaging in the effort, as part of negotiation of their basic collective bargaining agreement, to foresee potential labor-management relations issues, and resolve those issues in as comprehensive a manner as practicable. Instead, such a holding would encourage dispersal of the collective bargaining process. It is difficult to envision that Congress, with its interest in the achievement of effective and efficient Government through collective bargaining and the execution of collective bargaining agreements, intended to provide such a disincentive to bargaining for a contract and such an incentive to continuous bargaining on an issue-by-issue basis. Such an approach to bargaining would inject uncertainty into the parties' relationship, enhance the prospect for protracted conflict, and could lead to the continuous expenditure of resources for both management and exclusive representatives. This is not to say, of course, that all bargaining would be precluded during the term of an agreement. Thus, for example, where management seeks to alter an established condition of employment in a manner which is not precluded by the agreement, it is obligated to notify the exclusive representative and afford the latter an opportunity to bargain either over the substance of the change to the extent that it may be within the scope of bargaining or its impact and implementation. See, e.g., Social Security Administration, Mid-America Service Center, Kansas City, Missouri, 9 FLRA 229 (1982) and Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981). Additionally, where parties have negotiated a reopener provision in their agreement, timely negotiable proposals submitted in connection and consistent therewith are subject to the mutual obligation to bargain. See generally, Department of the Treasury, Internal Revenue Service and National Treasury Employees Union, 7 FLRA 610 (1982) and American Federation of Government Employees, AFL-CIO, Local 2494 and Strategic Weapons Facility Pacific, Bremerton, Washington, 7 FLRA 590 n.2 (1982). And, of course, management retains the authority to exercise its rights under section 7106(a) of the Statute subject to bargaining with the exclusive representative under section 7106(b)(2) and (3). See Social Security Administration, 8 FLRA 517 (1982). Turning to the instant case, the record indicates that the parties entered into collective bargaining agreements covering the two units involved herein on January 26, 1981. On July 29, 1981, six months later, the Charging Party submitted its bargaining proposals and demanded negotiations. Based on the above, the Authority concludes that there was no obligation to bargain over these union-initiated proposals and that the Respondent's failure to do so does not constitute a violation of section 7116(a)(1) and (5) of the Statute, as alleged. Accordingly, the Authority shall order that the complaint be dismissed in its entirety. ORDER IT IS ORDERED that the complaint in Case No. 3-CA-20156 be, and it hereby is, dismissed. Issued, Washington, D.C., April 24, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 3-CA-20156 Richard J. Mihelcic, Esquire Edward Lee Patton, Esquire For the Respondent Patricia Eanet Dratch, Esquire For the General Counsel Mr. Thomas Spangler Joseph V. Kaplan, Esquire For the Charging Party Before: BURTON S. STERNBURG, 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.Section 7101, et seq., and the Rules and Regulations issued thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980 and Vol. 46, No. 154, August 11, 1981, 5 C.F.R.Chapter XIV, Part 2411, et seq. Pursuant to a charge filed on November 27, 1981, by the National Treasury Employees Union (hereinafter called the Union or NTEU), a Complaint and Notice of Hearing was issued on February 26, 1982, by the Regional Director for Region III, Federal Labor Relations Authority, Washington, D.C. The Complaint alleges that the Internal Revenue Service (hereinafter called the Respondent or IRS), violated Sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (hereinafter called the Statute or Act), by virtue of its actions in refusing to negotiate over mid-term proposals submitted by the Union which were not related to any changes in personnel policies or practices, or general conditions of employment initiated by Respondent. A hearing was held in the captioned matter on April 15, 1982, in Washington, D.C. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The parties submitted post hearing briefs on May 17, 1982, which have been duly considered. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendations. Findings of Fact The Union, the charging party herein, is the exclusive representative of various units of employees working for the IRS in its National Office, regions, districts, service centers, Detroit Data Center and National Computer Center. The Union and the IRS are parties to two separate collective bargaining agreements covering the aforementioned IRS employees who are represented by the Union. The NORD agreement applies to the employees working in the National Office, regions and districts. The Service Center Agreement is applicable to the IRS service centers, Detroit Data Center and the National Computer Center. Both agreements were effective January 26, 1981. Article 39, Section C of the NORD Agreement and Article 38, Section C of the Service Center Agreement set forth the ground rules for mid-contract negotiations of "Employer" sponsored "proposed changes in the conditions of bargaining unit employees employment". Neither contract contains any provision for Union sponsored changes in conditions of employment, nor do they make any reference, whatsoever, to mid-term proposals of the Union with respect to subjects not encompassed in such collective bargaining agreements. In this latter context, Mr. Irvin Des Roches, the Chief negotiator for the IRS since 1969, in the matter of collective bargaining agreements, testified that the parties always had the understanding while they were negotiating the NORD and Service Center Agreements and the parties similar predecessor agreements that they were negotiating for the life of such agreements "except for changes". In support of his position, Mr. Des Roches relied upon Article 39 and Article 38, respectively of the NORD and Service Center Agreements. Mr. Des Roches further acknowledged that he had been unsuccessful on behalf of the IRS in obtaining "a written waiver from the Union that gave up any and all rights during the life of the (collective bargaining) agreement". In this latter connection, Mr. Frank Ferris, Director of Negotiations for NTEU since 1979, who admittedly was not at all the negotiating sessions leading up to the current NORD and Service Center Agreements, denied that the Union had ever waived its right to "enter into bargaining during the term of the agreement". On July 29, 1981, the Union sent a letter to the Respondent wherein it requested negotiations on nine proposals dealing with conditions of employment. The nine proposals dealt with Government Cars, Employee Investigations, Legislative Salary Check Off, Professional Difference of Opinion, Fitness For Duty, Work at Home, Emergency Suspensions, Administrative Holidays, and Geographic Selection of Work Site. /8/ The Union's proposals contained in the July 29, 1981, letter to Respondent read in pertinent part as follows: GOVERNMENT CARS The Employer will make available to any union official who is to be engaged in the use of official time a government car as long as a government car is already in use at the employee's posts-of-duty for other official matters. EMPLOYEE INVESTIGATIONS In no case will any employee who is the subject of an investigation by management (including Inspection) that could reasonably lead to discipline be required to answer any question put to him or her. No adverse consequences of any kind, e.g., supervisory harassment, will befall the employee for his/her refusal to answer. LEGISLATIVE SALARY CHECK OFF During the first full pay period in April and October of each year an employee may have deducted from his/her salary an amount of money designated by the employee. This money will be sent by IRS to NTEU no later than the end of the next full pay period. FITNESS FOR DUTY In no case will an employee be forced to be physically or mentally examined in a "fitness for duty" examination by the government chosen doctor unless he/she so chooses. If the employee does not want to use a government designated doctor he/she need only submit a list of three doctors from which the employer will choose the doctor to do the examination. WORK AT HOME Because of the benefits that can flow from employees working at their homes, the employer will immediately begin a one year experiment to test the feasibility of the premise. The test will include Revenue Agents, Revenue Officers, Tax Auditors, Revenue Representatives, and others in like positions. The employees will be permitted to do work at home that would otherwise be done in the office, but without public contact. At the completion of the test either party can reopen negotiations on this subject. GEOGRAPHIC SELECTION OF WORK SITES Effective and enlightened personnel management practices call for permitting employees to choose when they will do their assigned duties. Consequently, the parties agree to give employees more freedom on this matter by implementing the following: When opportunities arise which call for employees to temporarily perform their assigned duties outside their normal duty station, e.g., at a taxpayer's place of business, these temporary assignments will be offered to qualified and available employees with requisite skills on the basis of seniority. If there are no volunteers these assignments will be rotated among qualified and available employees with requisite skills in inverse order of seniority. These procedures are limited to situations which would not require a position change of an employee, and they do not require an assignment in the absence of work. By letter dated September 23, 1981, Respondent acknowledged the Union's letter and noted that inasmuch as no changes had been effected in the areas of the proposals, the Respondent was under no obligation "to negotiate over the Union's proposals at this time". Respondent further informed the Union that "the proposals could be the subject of discussions when the NORD and Center Agreements may be renegotiated in 1985, or, of course, if the Service actually does make a change on these issues before then". By letter dated October 8, 1981, the Union acknowledged receipt of Respondent's September 23, 1981 letter, and informed the Respondent that it, the Union, had a right, independent of changes, to request bargaining at any reasonable time as may be necessary. On November 12, 1981, the Respondent sent a letter to the Union wherein it stated in pertinent part as follows: . . . it is the Services' position that we have no obligation to negotiate over mid-term proposals initiated by NTEU that do not directly relate to management initiated changes in personnel policies or practices, or general conditions of employment. Since the proposals submitted on July 29, 1981, do not relate to any management initiated changes, we are under no obligation to negotiate over them. The record further indicates that during the negotiations leading up to the current collective bargaining agreements, the Union submitted proposals dealing with (1) allowing Field Revenue Officers and Revenue Agents to spend one duty hour per day at home to prepare reports and make telephone calls, (2) the right of employees to have representatives at inspection interviews which the employee reasonably believes may result in disciplinary action, /9/ (3) allowing Union Stewards, Chapter Presidents or grievants to receive necessary administrative time, travel and per diem in connection with grievances, formal discussions, etc., and (4) payment for medical certificates and physicals in connection with fitness for duty examinations. Mr. Irvin Des Roches, the Chief Negotiator for the IRS, and Respondent's sole witness, testified that while union check-offs and terminations were discussed during the negotiations there were no discussions or negotiations concerning legislative checkoffs. Other than indicating that the Union had submitted the proposals set forth above during the negotiations, Mr. Des Roches did not go into any detail concerning what transpired with respect to such proposals during the negotiations, nor did he give any reasons for the non-inclusion of the Union's proposals in the current NORD and Service Center Agreements. With respect to the Union's proposal concerning the use of Government Cars, Mr. Des Roches acknowledged that the subject was not specifically broached during the negotiations dealing with per diem pay, etc. to union stewards. Both Mr. Frank Ferris, Director of Negotiations for the NTEU, who attended many of the pre-contract negotiations, and Mr. Des Roches acknowledged that physical examinations were only discussed in connection with such examinations for pregnant employees. As to the proposal dealing with Geographic Selection of Work Sites, Mr. Des Roches testified that such subject was only discussed in connection with the negotiation concerning employees working at home. Article 17, Section 2 and Article 40 of the NORD Agreement, and Article 16, Section 2 and Article 39 of the Service Center Agreement contain provisions dealing with dues check-off and maternity leave examinations in connection with fitness for duty. The maternity leave provision makes no mention of the employee's right to select her own doctor, and the check-off provision is limited to union dues. Discussion and Conclusions Respondent takes the position that, in the absence of employer initiated changes, it is under no obligation to bargain over mid-term proposals concerning working conditions, etc., submitted by the Union. In the alternative, Respondent takes the position that it is under no obligation to bargain over any subjects which were discussed, or could have been discussed, during the contract negotiations leading up to the NORD and Service Center Agreements. The General Counsel and the Union, on the other hand, take the position that the Respondent is obligated to bargain over the mid-term proposals submitted by the Union and that the Union did not waive its rights to bargain over the six mid-term proposals during the negotiations leading up to the current collective bargaining agreements. In support of its position with respect to mid-term bargaining, the Union and the General Counsel rely for the most part on two Circuit Court decisions in the private sector, i.e., Jacobs Manufacturing v. NLRB, 196 F.2d 680 and NL Industries v. NLRB 536, F.2d 786, wherein the Courts concluded that in the absence of a waiver, an employer has the duty and obligation to bargain with respect to subjects which were neither discussed nor embodied in any of the terms of an existing collective bargaining contract. With regard to the waiver issue, the General Counsel and the Union take the position that the record falls short of establishing that the six mid-term proposals were fully discussed during pre-contract negotiations to the extent that the Union consciously and unequivocally waived its right to future bargaining on such subjects. Respondent acknowledges the private sector law but takes the position that a different conclusion should be reached in the public sector since the industrial strife occasioned by strikes and lockouts which mid-term bargaining is designed to prevent, is not present in the public sector. In this context, while it is true that the Court in Jacobs Manufacturing, supra, did allude to the fact that the absence of mid-term bargaining in the private sector might lead to industrial strife occasioned by strikes and lockouts, it did not base its decision with respect to the necessity for mid-term bargaining solely on that factor. The main issue before the court in Jacobs, supra, was the impact of Section 8(d) /10/ on mid-term bargaining. As noted above, the Court, citing the precise language of the Statute, concluded that an employer was obligated to enter mid-term bargaining with respect to proposals encompassing terms and conditions of employment which were neither discussed nor encompassed in the collective bargaining agreement. Neither a review of the legislative history nor a literal reading of the Federal Services Labor-Management Relations Statute compels a different conclusion with respect to mid-term bargaining than that currently existing in the private sector. Moreover, to hold otherwise, would give a distinct advantage to agencies, since only they would be free to initiate mid-term changes in conditions of employment. Giving such an advantage to employers would run counter to the intent of Congress which sought to put agencies and unions on an equal footing in the matter of collective bargaining. To insure such equal footing, Congress went so far as to authorize payment of travel and per diem expenses as well as utilization of official time for employees representing exclusive representatives in both basic and mid-term collective bargaining. See, Interpretation and Guidance, 2 FLRA No. 31; Bureau of Alcohol, Tobacco and Firearms, Western Region, Dept. of Treasury, San Francisco, U.S. Ct of Appeals, (9th circuit), BNA, Govt. Employees Relations Reporter, No. 958, April 12, 1982, pg. 37. Further, contrary to the position of the Respondent, I do not believe that the full scope grievance procedure mandated by the Statute provides an effective substitute for mid-term bargaining. Such grievance procedures are generally only applicable to interpretation and enforcement of existing terms and conditions of employment and make no provision for proposals dealing with the institution of new terms or conditions of employment. Finally, with respect to Respondent's position concerning the absence of an obligation to bargain over a union's mid-term bargaining proposal, I do not agree that the Assistant Secretary's decision in Army and Air Force Exchange Region Headquarters, Case No. 22-6657(CA), Ruling on Requests for Review, Case No. 779, holds that there is no mandatory obligation on an activity to bargain over a union's mid-term bargaining proposals. While it is true that the Acting Regional Administrator did make such a statement in his letter dismissing the Complaint, the Assistant Secretary, however, affirmed the Acting Regional Administrator's dismissal on the sole ground that the agency had indeed bargained on the mid-term proposal. Having concluded that the Respondent is obligated to bargain over mid-term bargaining proposals submitted by a union, the sole question remaining for resolution is whether the Union in the instant case waived its rights during the negotiations leading up to the current NORD and Service Center Agreements to bargain over the six mid-term proposals submitted on July 29, 1981. It is well established that a waiver will be found only if it can be shown that the exclusive representative clearly and unmistakably waived its statutory right to negotiate on the proposals in dispute. Department of the Air Force, U.S. Air Force Academy & AFGE, AFL-CIO, Local 1867, 6 FLRA No. 100; Department of the Air Force, Scott Air Force Base, Illinois & NAGE, Local R7-23, 5 FLRA No. 2. The withdrawal of a contract proposal or failure to pursue a demand in contract negotiations does not constitute a waiver. IRS, Jacksonville, Florida Service Center, 1 FLRA No. 35; IRS Fresno Service Center, A/SLMR No. 1119; NASA Kennedy Space Center, Florida, A/SLMR No. 223; Beacon Journal Publishing Co., 164 NLRB 734; The Press Co., Inc., 121 NLRB 976, 178. Applying the above established principles of law to the record evidence herein, I cannot find that the Union expressly waived its rights with respect to mid-term bargaining on the six proposals under consideration herein. Thus, I find, contrary to the testimony of Mr. Des Roches, that Article 39 and Article 38, of the NORD and Service Center Agreements, respectively, are not what are generally referred to as "zipper clauses", wherein a union relinquishes all rights to bargaining on all subjects for the term of the agreement. This conclusion is supported by Mr. Des Roches' admission that he had been unsuccessful in obtaining "a written waiver from the Union that gave up any and all rights during the life of the (collective bargaining) agreement". Accordingly, if the Respondent is to succeed in its waiver argument, it must be established that the six proposals were fully discussed during the negotiations leading up to the NORD and Service Center Agreements and that the Union consciously and unequivocally waived its rights to future bargaining thereon. Contrary to the contention of the Respondent, I can not find that the record supports such a conclusion. The record falls short of establishing that parties did in fact discuss the Union's proposals dealing with Government Cars, Legislative Salary Check Off, Fitness for Duty, Work at Home, Geographic Selection of Work Sites and the employee's right to remain silent at all interviews or investigations that could lead to discipline. In fact, Mr. Des Roches acknowledged that there were no discussions concerning legislative checkoff or the use of government cars. Similarly, Mr. Des Roches' testimony with regard to the proposals dealing with Work at Home and Geographic Selection of Work Sites indicates that the only discussion of such subjects occurred with respect to the pre-contract proposal dealing with the right of certain employees to work one hour in the morning at their respective homes making telephone calls and preparing reports. Inasmuch as it is apparent that there is no relationship between the two proposals and the proposal discussed during the pre-contract negotiations, I can not conclude that such proposals were fully discussed and that the Union consciously and unequivocally waived its rights to future bargaining thereon. With respect to the Union's proposals dealing with (1) the employees' right to remain silent during investigations, etc., which could lead to discipline and (2) fitness for duty examinations, the record reveals that such proposals were also not fully discussed during the negotiations leading up to the current NORD and Service Center Agreements. Thus, Mr. Des Roches acknowledged that the only discussions concerning fitness for duty involved maternity situations and not other situations where physicals would be required. Additionally, the existing contracts only refer to the payment for such physicals and not the selection of a doctor to perform such physicals. Although Mr. Des Roches contended that the proposal dealing with silence during investigations was substantially the same as the Union's pre-contract proposal, a review of both documents indicates that the pre-contract proposal dealt solely with inspection investigations while the mid-term proposals dealt with all investigations and/or interviews which could lead to disciplinary action. Accordingly, I find insufficient basis for concluding that the Union's mid-term proposals dealing with silence during investigations and fitness for duty were fully discussed during pre-contract negotiations and that the Union consciously and unequivocally waived its rights to future bargaining thereon during the term of the existing collective bargaining agreements. Moreover, it is noted that the record, other than the testimony of Mr. Des Roches, which in the main merely identified the proposals submitted by the Union during the pre-contract negotiations and indicated that there had been some discussions thereon, is void of any evidence setting forth the details of any such discussions. In such circumstances, it is impossible to establish, as contended by the Respondent, that a waiver did occur. In fact, on the basis of the record evidence, the only thing that can be concluded, is that the Union submitted proposals which for some unexplained reasons were not included in the subsequent contracts. As noted above, the withdrawal of a contract proposal or failure to pursue a demand in contract negotiations does not constitute a waiver. The vice in reaching a contrary conclusion is eloquently set forth by the NLRB in The Press Co. Inc., supra, wherein the Board stated as follows: To hold that, without regard to the nature of precontract negotiations, the mere discussion of a subject not specifically covered in the resulting contract removes the matter from the realm of collective bargaining during the contract term would be to place a premium (a) upon an employer's ability to avoid having the subject included in the contract, despite his knowledge of the union's position that it was a bargainable matter and not within his unilateral control; and (b) upon the union's ability to have the subject specifically referred to in the contract by engaging-- if necessary-- in a strike. Such a doctrine would inevitably result in increasing the area of potential conflict in the interests of the parties at the bargaining table. Thus, the union would feel constrained to refrain from raising questions on which it feared agreement might not be reached lest it be held to have bargained away its interest therein. However, unless the union was possessed of some special prescience, its estimate of the employer's position on certain important matters might well be erroneous and these would remain unresolved, possibly to plague the parties during the contract term. On the other hand, the employer would be encouraged to raise all conceivable issues and then to resist their inclusion in the contract, in order to retain the right of unilateral action; this, in turn, would require that, once a subject was mentioned, the union take an adamant position in insisting upon its inclusion. But many of the questions thus raised might otherwise never have been in issue if the parties were permitted to await the events giving rise to their importance. By encouraging the union to seek an inadequate agreement or requiring inclusion in the agreement of all these matters, many of which might be only of contingent significance at the time of negotiation, a needless impediment would be placed in the way of successful collective bargaining. Upon the basis of the above analysis and conclusions I find that the Respondent violated Sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute by virtue of its actions in refusing to negotiate over the mid-term proposals submitted by the Union on July 29, 1981. Accordingly, I recommend that the Authority issue the following Order designed to effectuate the purposes and policies of the Statute. ORDER Pursuant to Section 7118(a)(7)(A) of the Federal Service Labor-Management Relations Statute, 5 U.S.C.Section 7118(a)(7)(A), and Section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section 2423.29(b)(1), the Authority hereby orders that the Internal Revenue Service shall: 1. Cease and desist from: (a) Refusing to enter into mid-term bargaining negotiations with the National Treasury Employees Union as the exclusive representative of its employees in appropriate units. (b) In any like or related manner, interfering with, restraining or coercing unit employees represented by the National Treasury Employees Union, in the exercise of their rights assured by the Statute. 2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute: (a) Upon request, bargain collectively with the National Treasury Employees Union with respect to its proposals concerning Government Cars, Employee Investigations, Legislative Salary Check-Off, Fitness for Duty, Work at Home and Geographic Selection of Work Sites, or other terms or conditions of employment that are not already referred to in, or covered by, the terms of an existing collective bargaining agreement. (b) Post at its offices covered by the NORD and Service Center Agreements 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 Deputy Commissioner of the Internal Revenue Service and they shall be posted for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. The Deputy Commissioner shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the 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. BURTON S. STERNBURG Administrative Law Judge Dated: June 15, 1982 Washington, D.C. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT refuse to enter into mid-term bargaining negotiations with the National Treasury Employees Union as the exclusive representative of our employees in appropriate units. WE WILL NOT in any like or related manner, interfere with, restrain or coerce unit employees represented by the National Treasury Employees Union, in the exercise of their rights assured by the Statute. WE WILL upon request, bargain collectively with the National Treasury Employees Union with respect to its proposals concerning Government Cars, Employee Investigations, Legislative Salary Check-Off, Fitness for Duty Examinations, Work at Home and Geographic Selection of Work Sites, or other terms or conditions of employment that are not already referred to in, or covered by, the terms of an existing collective bargaining agreement. (Agency or Activity) Dated: . . . By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region 3, whose address is: 1111 18th Street, N.W., Washington, D.C., 20036, and whose telephone number is: (202) 653-8452. --------------- FOOTNOTES$ --------------- /1/ These agencies were granted permission to participate in this proceeding pursuant to section 2429.9 of the Authority's Rules and Regulations. /2/ Section 7101 provides in relevant part as follows: Sec. 7101. Findings and purpose (a) The Congress finds that-- (1) experience in both private and public employment indicates that the statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them-- (A) safeguards the public interest, (B) contributes to the effective conduct of public business, and (C) facilitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment; and . . . . Therefore, labor organizations and collective bargaining in the civil service are in the public interest. (b) It is the purpose of this chapter to prescribe certain rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government. The provisions of this chapter should be interpreted in a manner consistent with the requirement of an effective and efficient Government. /3/ See, in this connection, Department of Defense v. Federal Labor Relations Authority, 685 F.2d 641, 644 (D.C. Cir. 1982) and Department of Defense, Army-Air Force Exchange Service v. Federal Labor Relations Authority, 659 F.2d 1140, 1145 (D.C. Cir. 1981). /4/ See, e.g., Federal Aviation Administration, Northwest Mountain Region, Seattle, Washington, 14 FLRA 644 (1984), in which the Authority determined in part that where parties have elected to negotiate over "permissive" subjects of bargaining, i.e., those matters which are excepted from the obligation to bargain under section 7106(b)(1) of the Statute or those matters which are outside the required scope of bargaining under the Statute, stability in Federal labor-management relations can be achieved by requiring the parties to adhere to those terms during the life of the agreement. /5/ Section 7215(a)(1) of the Senate Bill provided: Sec. 7215 Representation rights and duties (a) If a labor organization has been accorded exclusive recognition, such organization shall be-- (1) the exclusive representative of employees in the unit and is entitled to act for and negotiate agreements covering all employees in the unit. /6/ S. Rep. No. 95-969, 95th Cong. 2d Sess. 40 (1978), reprinted in Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, at 764 (1979). /7/ The Senate Report as cited at note 6, supra, also stated: "(w)here agency management proposes to change established personnel policies, the exclusive representative must be given notice of the proposed changes and an opportunity to negotiate over such proposals to the extent they are negotiable". This statement is consistent with the precedent under the Statute's predecessor, Executive Order 11491, as amended. In this regard, case law under the Executive Order ". . . require(d) adequate notice and an opportunity to negotiate prior to changing established personnel policies and practices and matters affecting working conditions during the term of an existing agreement unless the issues thus raised (were) controlled by current contractual commitments, or a clear and unmistakable waiver (was) present." See the 1975 Report and Recommendations of the Federal Labor Relations Council (to the President) on the Amendment of Executive Order 11491, as Amended, Labor-Management Relations in the Federal Service (1975), at 41. Moreover, it had never been established under the Executive Order that there was any obligation to bargain over union initiated mid-term proposals. Rather, in Army and Air Force Exchange Service, Capitol Exchange Region Headquarters, Case No. 22-6657(CA), 2 Rulings on Request for Review 561 (1976), the Assistant Secretary of Labor for Labor-Management Relations adopted the dismissal of a complaint which alleged that agency management had violated its duty to bargain in good faith by refusing to negotiate concerning the union's mid-contract proposal that it be granted the use of an employee breakroom to conduct a union membership drive. The complaint had been dismissed below in part on the basis that the Executive Order "does not impose any mandatory obligation on an Activity to bargain over changes proposed or requested by the Union during the term of the contract and does not give the exclusive representative any right to demand such bargaining." (Id. at 562) In adopting the dismissal, the Assistant Secretary noted among other things that "the parties' negotiated agreement provides for union membership drives, although the use of agency facilities for such purposes is not specifically outlined therein." Accordingly, an obligation to negotiate union initiated mid-term bargaining proposals did not exist under the Executive Order. The legislative history of the Statute evinces an intent on the part of Congress to continue this policy. /8/ Although the charge originally relied upon Respondent's refusal to negotiate over the nine proposals, during the course of the hearing the General Counsel made it clear that for reasons not set forth in the record, it was withdrawing any allegations of the Complaint predicated on the proposals dealing with Emergency Suspensions, Administrative Holidays and Professional Difference of Opinion. /9/ The Union's five-page proposal also contained language allowing the employee to remain silent at the inspection interview, but made the employee subject to removal if the employee failed to answer material and relevant questions pertaining to performance of his job duties. /10/ Section 8(d) of the Taft Hartley Act, provided in pertinent part that the duty to bargain collectively ". . . shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period. . . ."