[ v18 p361 ]
18:0361(48)CA
The decision of the Authority follows:
18 FLRA No. 48
INTERNAL REVENUE SERVICE
(DISTRICT OFFICE UNIT)
DEPARTMENT OF THE TREASURY
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION
Charging Party
Case No. 3-CA-774
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 take certain affirmative
action. Thereafter, the Respondent and the General Counsel each filed
exceptions to the Judge's Decision with supporting briefs, and the
Charging Party filed an opposition to the Respondent's exceptions and
cross-exceptions to the Judge's Decision. /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 recommendations only to the extent
consistent herewith.
As more fully set forth in the attached Decision, the Judge found
that, in October 1979, the Respondent, Internal Revenue Service
(District Office Unit), Department of Treasury, notified the Charging
Party, National Treasury Employees Union (the Union), that the Office of
Personnel Management (OPM) had delegated authority to the Department of
the Treasury to recruit and examine applicants for the position of
Internal Revenue Agent, GS-512, at the GS-5 and GS-7 levels, and that
this authority was redelegated to the Respondent effective November
1979. Further, the Judge found that, although not obligated to do so,
Respondent "decided to use the same procedures, methodology and criteria
previously utilized by OPM? so that "no change occurred in the manner
in which the recruitment and examination was performed other than the
location of the offices" where applications were to be filed.
The Judge concluded that the Respondent violated section 7116(a)(1)
and (5) of the Statute by refusing to bargain with the Union concerning
the latter's proposed procedures for the implementation and impact of a
delegation of authority to the Respondent concerning the recruitment and
examination of applicants for the above-mentioned unit positions. In
reaching his conclusion that the Respondent violated the Statute as
alleged, the Judge reasoned that the Respondent had been given control
over matters affecting working conditions over which it previously had
no control, thereby giving rise to a duty to bargain because any "past
practice" which had developed when the function was under OPM "had no
bearing on the practice which Respondent might now choose to utilize . .
. ." However, the Judge also found that no change in such recruitment
and selection procedures had occurred.
Subsequent to the issuance of the Judge's Decision herein, the
Authority issued its decision in Internal Revenue Service, 17 FLRA No.
103 (1985), stating in pertinent part:
(C)ongress 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. This distinction indicates
that other than negotiations leading to a basic collective
bargaining agreement, there is no obligation to bargain over
union-initiated proposals. (footnote omitted)
In the instant case, the record is clear that the parties' collective
bargaining agreement was in effect when the Respondent notified the
Union of the delegation of authority from OPM for the recruitment and
examination of applicants for the position of Internal Revenue Agent,
GS-512. Thereafter, the Union submitted its bargaining proposals and
demanded negotiations. However, despite the fact that the Respondent
had some flexibility as to whether it would follow OPM's practices in
fulfilling its newly delegated responsibilities, the procedures,
methodology and criteria utilized in the process in fact were unchanged.
In these circumstances, the Authority concludes that the Respondent had
no duty to bargain over proposals initiated by the Union during the term
of an existing collective bargaining agreement, and that the
Respondent's refusal to do so therefore did not constitute a violation
of section 7116(a)(1) and (5) of the Statute. /2/ Accordingly, the
Authority shall order that the complaint be dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-774 be, and it
hereby is, dismissed.
Issued, Washington, D.C., June 7, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Michael S. Sussman, Esq.
For the Respondent
Joseph V. Kaplan, Esq.
For the Charging Party
Peter A. Sutton, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO, Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Labor-Management Relations
Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq.
(herein referred to as the Statute).
Upon an unfair labor practice charge filed by the National Treasury
Employees Union (herein referred to as the Union), against the Internal
Revenue Service (District Office Unit), Department of the Treasury
(herein referred to as Respondent or IRS), on December 26, 1979, as
amended on January 30, 1980, /3/ the General Counsel of the Federal
Labor Relations Authority (herein referred to as the Authority), by the
Regional Director for Region 3, issued a Complaint and Notice of Hearing
on October 30, 1981. The Complaint alleged that Respondent violated
section 7116(a)(1) and (5) of the Statute by refusing to bargain with
the Union "over the procedures leading to implementation and the impact"
of a delegation of authority to Respondent concerning the establishment
of employment registers for Internal Revenue Agents, classification
GS-512. Respondent acknowledges it refused to bargain with the Union
but contends that it had no obligation to bargain on the matter.
A hearing on the Complaint was conducted on January 5, 1982 at which
time the parties were represented by counsel and afforded full
opportunity to adduce evidence, call, examine and cross-examine
witnesses and argue orally. /4/ Briefs were filed by all parties.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor, and my evaluation of the evidence, I make
the following:
Findings of Fact
At all times material herein Respondent has recognized the Union as
the exclusive collective bargaining representative for various IRS
employees including Internal Revenue Agents in the GS-512
classification. Approximately 15,000 employees are employed in the
Internal Revenue Agent GS-512 classification and pay levels GS-5 and
GS-7 appear to be entrance level jobs for that classification. /5/
Prior to October 1979 the Office of Personnel Management (OPM) was
fully authorized and responsible for the recruitment and examination of
applicants for the GS-512 classification concerned herein. When
recruiting, OPM issued a nationwide announcement of vacancies for
Internal Revenue Agent positions which went to all OPM area offices,
State employment offices, Federal Job Information Centers and all
"agency user offices." The announcement also designated which OPM office
would receive applications of interested persons. Upon receipt of
applications OPM personnel, using its own guidelines, rated the
applicants by score and placed them on a register in order of score
achieved. The candidates were issued a notice of rating and advised to
submit their applications to the IRS along with a copy of the notice of
rating. A Special Examining Unit of IRS, under the delegated authority
from OPM and operating "as an arm of OPM," /6/ listed the eligible
candidate on a certificate in order of rating scores from which a
candidate would be selected for employment by IRS.
By letter dated October 23, 1979 Respondent notified the Union that
OPM had delegated to the Department of the Treasury authority to recruit
and examine applicants nationwide for the position of Internal Revenue
Agent GS-512 at the GS-5 and GS-7 levels and that the Department of the
Treasury redelegated this authority to IRS. The Union was informed that
the delegation to IRS would be effective November 1, 1979. The
delegation from OPM, a copy of which was provided to the Union,
instructed IRS to comply with law, OPM regulations and Federal Personnel
Manual instructions, but IRS was not obligated to follow OPM work
processing procedures and was accorded a substantial degree of
flexibility to depart from OPM's practices in fulfilling its newly
delegated recruitment and examination responsibilities. /7/ However,
IRS decided to use the same procedures, methodology and criteria
previously utilized by OPM in the recruitment and examination of GS-512
applicants. Accordingly, no change occurred in the manner in which the
recruitment and examination was performed other than the location of the
offices where individuals would file their applications was altered.
The Union had a substantial interest in the recruitment and
examination procedures in that unit employees may compete for a vacancy
within the organization by using internal promotion procedures or
obtaining an appointment to the position by responding to a vacancy
announcement and competing with other applicants for a favorable
position on a register. In a letter dated November 7, 1979 to IRS the
Union invoked its ". . . right to negotiate over the changes wrought by
the OPM-DOT delegation of authority to IRS . . . ." In the letter the
Union indicated its desire for a meeting to discuss the matter further
before submitting proposals. On November 20, 1979 the Union submitted
16 bargaining proposals relative to this subject. The proposals
included, inter alia, such matters as announcements to employees;
contents of the announcement; assistance to employees in assembling and
presenting qualifications; informing employees found ineligible,
unsuitable or passed over as to the reasons therefor; waiving
time-in-grade restrictions; the location for employee submissions;
payment of costs for employee interviews; recruiting efforts among
minority or women employees; informing the Union as to areas IRS
believes an adverse impact on employees exists; selection factors being
uniform throughout the country; Union receipt of quarterly reports sent
to OPM, and; the right to grieve.
On or about December 12, 1979 IRS met with the Union and informed
them that it did not have an obligation to and would not enter into
negotiations over the Union's proposals. IRS thereafter continued to
recruit and examine applicants for GS-512 vacancies as set forth above.
Discussion and Conclusions
The General Counsel contends that the Union's proposals of November
20, 1979 were related to terms and conditions of employment, negotiable
under the Statute, not contrary to the provisions of the OPM delegations
nor inconsistent with any law or regulation. Respondent does not
challenge General Counsel's contentions other than that its refusal to
bargain with the Union violated the Statute. Respondent takes the
position that since after the delegation from OPM it continued to
perform the recruitment and selection in a manner virtually identical to
the way it was performed when OPM was responsible for these functions,
no change in working conditions occurred and, if no change occurred,
there could be no adverse effect or substantial impact upon unit
employees.
I reject Respondent's contentions. In my view a very substantial and
essential change occurred: Respondent was given control over matters
affecting work conditions that it heretofore had no control. When
control over recruitment and selection procedures resided with OPM, the
Union could not demand to bargain on these matters since there was no
privity between the Union and OPM. After the delegation, recruitment
and selection came under the control of Respondent and the subject
became an area open to negotiation, to the extent such matters are
negotiable under the Statute. Thus, any "past practice" which developed
under OPM has no bearing on the practice which Respondent might now
choose to utilize, be it to continue the OPM practice or modify the
procedures to the degree allowed under the delegation. Accordingly,
since recruitment and selection proposals relate to conditions of
employment and no issue exists as to their negotiability under the
Statute, their conformance to the provisions of the OPM delegation nor
inconsistency with law or regulation, I conclude that Respondent's
refusal to bargain on the Union's proposals of November 20, 1979
violated section 7116(a)(1) and (5) of the Statute. /8/
Remedy
The Union and the General Counsel request that in addition to
ordering Respondent to negotiate with the Union on its proposals, the
order should provide that any agreement negotiated by the parties should
have a retroactive effect. No cases have been cited where the Authority
has previously granted such an order. However, when dealing with status
quo ante remedies, which subject is somewhat analogous to the relief
requested herein, the Authority indicated that the appropriateness of
such a remedy would be determined on a case-by-case basis. Federal
Correctional Institution, 8 FLRA 604 (1982), at 606. The Authority
stated in Federal Correctional Institution that among the factors to be
considered in cases involving a violation of the duty to bargain over
impact and implementation, as herein, would include:
"(1) whether, and when, notice was given to the Union by the
agency concerning the action or change decided upon; (2) whether,
and when, the union requested bargaining on the procedures to be
observed by the agency in implementing such action or change
and/or concerning appropriate arrangements for employees adversely
affected by such action or change; (3) the willfulness of the
agency's conduct in failing to discharge its bargaining
obligations under the Statute; (4) the nature and extent of the
impact experienced by adversely affected employees; and (5)
whether, and to what degree, a status quo ante remedy would
disrupt or impair the efficiency and effectiveness of the agency's
operations."
Assuming arguendo that the Authority is empowered to grant the relief
sought and considering all the facts and circumstances related to the
case herein, and taking into consideration the various factors set forth
in Federal Correctional Institution, and noting that approximately
15,000 individuals are employed in the GS-512 classification of which I
assume a substantial number of GS-5 and GS-7 vacancies have been filled
since November 1, 1979, I do not conclude that the relief sought is
warranted herein. The request is therefore denied. /9/
Accordingly, in view of the entire foregoing and having concluded
that Respondent has violated section 7116(a)(1) and (5) of the Statute,
I recommend the Authority issue the following:
Order
Pursuant to section 2430.20 of the Federal Labor Relations
Authority's regulations and section 7118 of the Statute, it is hereby
ordered that the Internal Revenue Service shall:
1. Cease and desist:
(a) Failing and refusing to negotiate in good faith with the
National Treasury Employees Union, the employees' exclusive
collective bargaining representative, regarding proposals
concerning the procedures to be observed in establishing
employment registers for GS-512 classification Internal Revenue
Agents and appropriate arrangements for employees adversely
affected by the establishment of such registers.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Upon request of National Treasury Employees Union, the
employees' exclusive collective bargaining representative,
negotiate, to the extent consonant with law and regulations,
concerning procedures to be observed in establishing employment
registers for GS-512 classification Internal Revenue Agents and
appropriate arrangements for employees adversely affected by the
establishment of such registers.
(b) Post at its National Office, Regional Offices and District
Offices copies of the attached Notice marked "Appendix", on forms
to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms they shall be signed by the Commissioners,
Internal Revenue Service, and shall be posted and maintained by
him for 60 consecutive days thereafter, in conspicuous places,
including bulletin boards and all other places where notices to
employees are customarily posted. The Commissioner shall take
reasonable steps to insure that such notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Federal Labor Relations
Authority's Rules and Regulations, notify the Regional Director of
Region 3, Federal Labor Relations Authority, 1111 18th Street,
NW., Suite 700, Washington, D.C. 20036, in writing within 30 days
from the date of the Order as to what steps have been taken to
comply herewith.
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: June 30, 1982
Washington, D.C.
APPENDIX
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to negotiate in good faith with National
Treasury Employees Union, the employees' exclusive collective bargaining
representative, regarding proposals concerning the procedures to be
observed in establishing employment registers for GS-512 classification
Internal Revenue Agents and appropriate arrangements for employees
adversely affected by the establishment of such registers.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request of the National Treasury Employees Union,
negotiate, to the extent consonant with law and regulations, concerning
procedures to be observed in establishing employment registers for
GS-512 classification Internal Revenue Agents and appropriate
arrangements for employees adversely affected by the establishment of
such registers.
(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, Federal Labor Relations Authority, Region 3, 1111
18th Street, NW., Suite 700, Washington, D.C. 20036 and whose telephone
number is (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ The General Counsel thereafter submitted a Motion to File a
Supplemental Brief. In view of our disposition herein, such motion is
denied pursuant to section 2429.26 of the Authority's Rules and
Regulations.
/2/ See also U.S. Army Corps of Engineers, Kansas City District,
Kansas City, Missouri, 18 FLRA No. 47 (1985), wherein the Authority
found that a union's bargaining proposals submitted in anticipation of
certain changes mandated by law did not raise an obligation to bargain
on the part of agency management in the circumstances of the case.
/3/ On June 4, 1980 the Regional Director for Region 3 declined to
issue a complaint regarding the unfair labor practice charge. The
Regional Director's decision was appealed by the Union and, on April 20,
1981, the General Counsel remanded the case to Region 3 ". . . for
further investigation and appropriate action."
/4/ Counsel for the General Counsel's unopposed motion to correct the
transcript is hereby granted.
/5/ Due to the large number of employees in the GS-512
classification, I find it reasonable to infer that the number of GS-5's
and GS-7's recruited each year for these positions is substantial.
/6/ The IRS Special Examining Unit participated in this procedure for
at least a year prior to November 1979.
/7/ The delegation in the form of an agreement between OPM and the
Department of the Treasury, is a five page document setting out, inter
alia, various general and specific responsibilities of the parties.
/8/ I also reject Respondent's claim that a change in working
conditions is the predicate for an obligation to bargain for the reasons
enunciated in Judge Burton S. Sternburg's recent decision in Internal
Revenue Service, Case No. 3-CA-20156, issued June 15, 1982, OALJ-82-92,
concerning the obligation to bargain over a union's mid-term bargaining
proposal.
/9/ See U.S. Customs Service, Region V, New Orleans, Louisiana, 9
FLRA No. 15 (1982).