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The decision of the Authority follows:
19 FLRA No. 55 INTERNAL REVENUE SERVICE Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 3-CA-20489 DECISION AND ORDER The Administrative Law Judge issued his Decision in the above-entitled proceeding, finding that Internal Revenue Service (the Respondent) had engaged in the unfair labor practices alleged in the complaint and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent filed exceptions to the Judge's Decision and a supporting brief. 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. The Judge found that the Internal Revenue Service (the Respondent) violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate concerning proposals submitted by the National Treasury Employees Union (the Union) during the term of an existing collective bargaining agreement even though such proposals were not related to any changes initiated by the Respondent. The Judge concluded 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 Authority does not agree. Subsequent to the Judge's Decision in the instant case, the Authority issued its Decision and Order in Internal Revenue Service, 17 FLRA No. 103 (1985), petition for review filed sub nom. National Treasury Employees Union v. FLRA, No. 85-1361 (D.C. Cir. June 14, 1985), in which it found that agencies have no 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. /1/ In so finding, however, the Authority further noted, inter alia, that "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." In the instant case, during negotiations between the Union and the Respondent for a collective bargaining agreement, the Union submitted two proposals concerning continuing legal education for certain unit employees. The Respondent declared both proposals nonnegotiable, and the Union filed a negotiability appeal with the Authority. When the services of the Federal Mediation and Conciliation Service were invoked, the Union withdrew the two proposals, and the parties later executed a collective bargaining agreement which contained no reference to continuing legal education. However, the agreement contained a provision which read: "Proposals declared nonnegotiable and subsequently found negotiable by the . . . Authority will be timely negotiated by the parties after the finding." Subsequently, during the term of the parties' agreement, the Authority issued its decision on the negotiability issue noted above, finding that the proposals were nonnegotiable as drafted, but indicating how they might be revised to be made compatible with existing law and thus rendered negotiable. National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 6 FLRA 508 (1981). The Union sought to bargain concerning the two proposals and the Respondent refused, contending that it had no duty to bargain mid-term in the circumstances presented. As noted above, the Authority has since held that an agency is not obligated to bargain concerning union-initiated mid-term bargaining proposals which are unrelated to changes in conditions of employment initiated by management. Therefore, unless the parties' reopener provision is applicable, the Respondent's refusal to bargain herein did not constitute a violation of the Statute. The collective bargaining agreement involved herein clearly provides for reopening negotiations and for the parties to bargain in the event that the Authority determines proposals to be negotiable upon appeal. However, that circumstance did not occur herein, for the proposals submitted by the Union during negotiations and declared nonnegotiable by the Respondent were found to be nonnegotiable by the Authority on appeal and the Respondent therefore was under no obligation to bargain. /2/ Accordingly, the instant complaint must be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 3-CA-20489 be, and it hereby is, dismissed. Issued, Washington, D.C., July 31, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 3-CA-20489 Ramona Hall, Esquire William L. Bransford, Esquire For the Respondent Mr. Frank D. Ferris Mr. Jeffrey H. Gelman For the Charging Party Sharon Prost, Esquire Bruce D. Rosenstein, Esquire For the General Counsel, FLRA Before: GARVIN LEE OLIVER Administrative Law Judge DECISION Statement of the Case This decision concerns an unfair labor practice complaint issued by the Regional Director, Region Three, Federal Labor Relations Authority, Washington, D.C. against the Internal Revenue Service (Respondent), based on a charge filed by the National Treasury Employees Union (Charging Party, NTEU, or Union). The complaint alleged, in substance, that Respondent violated sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute), on March 22, 1982 by refusing to negotiate in good faith with the Union concerning two proposals submitted on March 10, 1982. The proposals concerned reimbursement of costs and administrative leave for certain continuing legal education classes required of attorneys by state bars. Respondent contends that it has no obligation to negotiate over mid-term proposals initiated by NTEU that do not directly relate to management-initiated changes in conditions of employment. Assuming such an obligation, Respondent maintains that this duty does not extend to subjects which were discussed during term negotiations. A hearing was held in Washington, D.C. The Respondent, Charging Party, and the General Counsel were each represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations. Findings of Fact At all times material herein, Respondent has recognized the Union as the exclusive collective bargaining representative of appropriate units of Respondent's professional and non-professional District, Regional, and National Office employees. (General Counsel's Ex. 1(e), 1(g). Negotiations between the Union and Respondent for a collective bargaining agreement covering these employees began in 1979. (Tr. 16-17.) During the course of these negotiations, on April 25, 1979, the Union submitted several proposals including two relating to the training and administrative leave contract articles. The first sought agency reimbursement for all costs incurred by attorneys in attending continuing legal education courses, when required by state law to do so in order to continue to be licensed to practice law. The second proposal sought to have the agency grant administrative leave to attorneys required to attend such continuing legal education courses. (General Counsel's Ex. 2, 3A, 3B; Tr. 17-18.) These proposals came to the bargaining table for discussion early in May 1979. IRS asked the Union to give a rationale for the proposals. The Union responded that since bar membership was a condition of IRS employment for lawyers, IRS should pay for lawyers to take the continuing legal education required by some state bars for continued membership in the bar. IRS refused to accede to the Union proposal. IRS replied that employment as a lawyer was conditional on membership in the bar, and the responsibility to meet, and continue to meet, that condition was solely upon the employee. (Tr. 19, 49-50.) IRS formally rejected the proposals when it failed to mention them in written counter-proposals dealing with other matters. The Union pursued its demand and, in subsequent discussions, on or about May 9, 1979, the IRS declared both proposals nonnegotiable. The Union thereafter, also in May of 1979, submitted a negotiability appeal to the Authority which contained the above proposals. IRS was furnished a copy of this appeal. (Tr. 19, 51-52.) At some point during May 1979 the Union advised management that if management would be willing to settle some outstanding grievances on the basis of permitting attorneys to take the bar examination in two states, instead of one state, the Union would be willing to withdraw and settle the matter of continuing education. (Tr. 58-59.) There is no evidence that this offer was accepted by IRS or specifically discussed further by the parties in relation to the Union's continuing education proposals. Contract negotiations on subjects other than continuing legal education continued. By December 1979, with approximately 200 issues outstanding and unresolved, face-to-face negotiations had broken down. The assistance of a federal mediator had been requested, and the parties were submitting proposals through him. (Tr. 20.) The parties had agreed that in this exchange of proposals each of the parties would give something to get something. (Tr. 56.) Responding to a request by the mediator to narrow the number of issues outstanding, the Union formally withdrew from the bargaining table the two proposals on continuing legal education. The Union did so because the proposals were then pending in a negotiability appeal before the Federal Labor Relations Authority, and the Union did not feel the IRS could be convinced that the proposals were in fact negotiable. (Tr. 20-21, 31, Respondent Ex. 1(a) and 1(b).) The Federal Mediation and Conciliation Service does not handle issues that are pending before the Authority as negotiability appeals. (Tr. 36.) /3/ IRS interpreted the withdrawal as the Union giving something to get something. In January 1980 IRS agreed to settle outstanding grievances by permitting attorneys to take the bar examination in two states. The grievances were settled on this basis. There is no evidence that IRS, in doing so, specifically related its action to the Union's earlier offer in May 1979, or to the Union's subsequent withdrawal of the continuing legal education proposal. (Tr. 59.) Thereafter, negotiations continued, and the ensuing contract between the parties became effective on January 26, 1981. (Tr. 22; Joint Ex. 2.) The contract did not include any provisions on continuing legal education. Rather, the matter of the negotiability of the two proposals on continuing legal education remained pending before the Federal Labor Relations Authority through this period and until the Authority decision in September, 1981. (Tr. 22; General Counsel's Ex. 4.) /4/ On September 4, 1981, the Authority issued its decision on the negotiability issue, agreeing with Respondent that the continuing legal education proposals were nonnegotiable. However, the Authority decision noted that the proposals could be made negotiable if they were revised to incorporate the applicable statutory limitations set forth in the Training Act. National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 6 FLRA No. 97 (1981). (General Counsel's Ex. 4.) Following its receipt of the negotiability determination referred to above, the Union, by letter dated September 22, 1981, again requested negotiations over the identical proposals. The Union stated that the new contract's requirement, that both parties interpret provisions therein consistent with any statutory provisions, satisfied the Authority's decision and order. (Tr. 23, General Counsel's Ex. 5.) IRS refused to negotiate. IRS noted that the Authority's finding effectively disposed of the matter, and it was not required to negotiate on proposals which had already been found to be nonnegotiable. (General Counsel's Ex. 6; Tr. 67.) The Union, in approximately January 1982, filed an unfair labor practice charge over Respondent's refusal to bargain. This charge, 3-CA-20268, was subsequently dismissed by the Regional Director, Region III. (General Counsel's Ex. 12, Tr. 38.) The dismissal was based on a determination that the proposals, as submitted on September 22, 1981, were not deemed to constitute revised proposals reflecting the legal requirements as set forth by the Authority in 6 FLRA No. 97. (General Counsel's Ex. 12; Tr. 39-40.) Upon learning of the dismissal, the Union revised its proposals in an effort to conform with the requirements set forth in 6 FLRA No. 97. (Tr. 40.) By letter dated March 10, 1982, the Union requested negotiations on the revised proposals. (General Counsel's Ex. 10; Tr. 40.) By letter dated March 22, 1982, Respondent refused to bargain on the revised proposals. In its response, Respondent did not declare the proposals nonnegotiable. Respondent acknowledged that the proposals submitted had been "amended to include the statutory limitations necessary to make them negotiable on their face." Respondent based its refusal to bargain on two grounds. It contended that the Union's withdrawal of the proposals during contract negotiations constituted a waiver by the Union. Furthermore, it noted that the IRS had done nothing to open this subject up for mid-term negotiations. (General Counsel's Ex. 11; Tr. 68-69.) Respondent has made no changes in conditions of employment in the subject area of the two proposals. (Tr. 33-34, 65.) Discussion, Conclusions, and Recommendations IRS contends that it has no obligation to bargain over mid-term proposals submitted by NTEU that do not directly relate to management-initiated changes in conditions of employment. In the alternative, IRS maintains that it is under no obligation to bargain over any subject discussed during term negotiations. IRS claims that the proposals were fully discussed by the parties and later withdrawn by the Union in writing in exchange for concessions made by the agency. The General Counsel and the NTEU take the position that IRS is obligated to bargain over mid-term proposals submitted by the Union. The General Counsel maintains that, in any event, the proposals at issue were, in fact, nothing more than a continuation of master contract negotiations over an issue that had been temporarily set aside pending the outcome of the negotiability appeal. These parties also assert that the Union's withdrawal of the proposals during contract negotiations did not amount to a waiver of its right to negotiate over the issue of continuing legal education. The Authority has held that the contention that an agency has no duty to bargain with regard to changes in conditions of employment proposed by a union, but only with regard to changes proposed by the agency, "is clearly inconsistent with the definition and purpose of 'collective bargaining' under the Statute and therefore cannot be sustained." Library of Congress, 9 FLRA No. 51 (1982); Library of Congress, 9 FLRA No. 52 (1982). A few weeks prior to the Authority's decisions, Judge Burton S. Sternburg, in a case involving the same parties as the instant case, thoroughly canvassed the issues raised by this contention and reached the same conclusion. See Internal Revenue Service and National Treasury Employees Union, Case No. 3-CA-20156, OALJ 82-92 (June 15, 1982), appeal pending. Judge Sternburg held that, under the Statute, an agency is obligated to enter mid-term bargaining with respect to proposals which were neither discussed nor encompassed in the collective bargaining agreement. Substantially all that was said by Judge Sternburg concerning this issue is equally applicable here, and it would serve no purpose to enlarge this decision with a paraphrased repetition of what was in that opinion thoughtfully considered and carefully expressed. I also agree with the General Counsel's position that, even assuming arguendo that there were no obligation on Respondent to bargain over matters during the life of the contract that did not concern management-initiated changes, such a defense would not be applicable herein. The proposals at issue were, in fact, nothing more than a continuation of master contract negotiations over an issue that had been temporarily set aside pending the outcome of the negotiability appeal. /5/ With respect to Respondent's position that it had no obligation to bargain over any subject "discussed" during term negotiations, the Authority has previously held that "a waiver will be found only if it can be shown that the exclusive representative clearly and unmistakably waived its right to negotiate." Library of Congress, supra, 9 FLRA at 429; Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No. 2 (1981). There is no evidence that the Union expressly waived its rights with respect to mid-term bargaining of the proposals under consideration here. There is also no evidence of a "zipper clause", wherein each party agrees that the other shall not be obligated to bargain with respect to any matter not covered by the contract for the life of the agreement. For a matter to be considered waived by precontract negotiations, it must have been "fully discussed" or "consciously explored" and "consciously yielded" or "knowingly relinquished." This conduct permits a determination that one party clearly and unmistakably waived its interest in the matter and/or acceded to the position of the other. Cf. Department of the Navy, Portsmouth Naval Shipyard, 4 FLRA No. 82 (1980); Bureau of Alcohol, Tobacco and Firearms, National Office and Central Region, 2 FLRA No. 67 (1980); The Bunker Hill Co., 208 NLRB 27, 33, modified 210 NLRB 373 (1974); The Beacon Journal Publishing Co., 164 NLRB 734, 65 LRRM 1126 (1967); Saint Mary's Hospital and Hotel, 260 N.L.R.B. No. 175, 109 LRRM 1343 (1982). Addressing the issue of waiver in Internal Revenue Service and National Treasury Employees Union, supra, Judge sternburg stated that, apart from an express waiver, a waiver by bargaining history must be established by showing that the "proposals were fully discussed during the negotiations . . . and that the Union consciously and unequivocally waived its rights to future bargaining thereon." The mere discussion of a subject not specifically covered in the resulting contract does not remove the matter from the realm of collective bargaining during the contract term. The Press Co., Inc., 121 NLRB 976 (1958), quoted with approval in Internal Revenue Service, Case No. 3-CA-20156, supra. And the withdrawal of a contract proposal, or failure to pursue a demand in contract negotiations, does not, without more, constitute a waiver. See Internal Revenue Service, Case No. 3-CA-20156, supra (citing cases). Respondent asserts that the withdrawal of the contract proposals was made by the Union in order to obtain a concession from Respondent concerning the settlement of some grievances. In the early stages of bargaining, the Union did make an offer to withdraw the proposals in exchange for settling some grievances. However, the evidence does not show that Respondent ever accepted this offer, communicated its acceptance to the Union, or was acting pursuant to such a perfected agreement with the Union when it agreed to settle the grievances some seven months later. The settlement of the grievances could well have stood on its own merits. There is no clear evidence of a specific trade off with respect to the continuing legal education proposals. The superficial agreement that each party, in presenting proposals to the mediator, would "give up something to get something" is not sufficient to show that the matter was fully discussed, consciously explored, and that the Union, by withdrawing the proposals, consciously yielded its rights to further bargaining following the determination of its negotiability appeal. The Union's pursuit of its negotiability appeal demonstrates continued resistance to Respondent's position, not acquiescence. Respondent made no effort to apprise the Authority of the withdrawal of the proposals from the bargaining table during the approximately twenty-two months between the withdrawal and the Authority's decision on the negotiability appeal. This is in contrast to the action taken in another case where Respondent informed the Authority of the execution of an agreement covering a dispute and moved to dismiss the negotiability appeal. It is also in contrast to the Union's action in another instance reflected in the record where the Union requested the Authority to withdraw an appeal. The fact that no similar action was taken with regard to the two proposals involved here further supports the conclusion that the parties did not consider the Union's withdrawal as a clear and unequivocal waiver of its bargaining rights. The record does not support the conclusion that the proposals involved here were fully discussed during precontract negotiations and that the Union consciously yielded its rights to further bargaining thereon. Accordingly, it is concluded that Respondent's refusal to bargain concerning the Union's altered proposal constitutes a violation of section 7116(a)(1) and (5) of the Statute, as alleged in the complaint. Internal Revenue Service, 9 FLRA No. 27 (1982). Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order: ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the Authority hereby orders that the Internal Revenue Service shall: 1. Cease and desist from: (a) Refusing to negotiate in good faith with the National Treasury Employees Union, the exclusive representative of its employees, concerning the bargaining proposals submitted on March 10, 1982 with respect to reimbursement of costs and administrative leave for certain continuing legal education courses. (b) In any like or related manner, interfering with, restraining, or coercing 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 Statute. (a) Upon request of the National Treasury Employees Union, the exclusive representative of its employees, negotiate in good faith concerning the bargaining proposals submitted on March 10, 1982 with respect to reimbursement of costs and administrative leave for certain continuing legal education courses. (b) Post at its facilities copies of the attached Notice marked "Appendix" on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Chief, Labor Relations Branch, and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The Chief, Labor Relations Branch shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (c) Pursuant to 5 C.F.R. 2423.30 notify the Regional Director, Region Three, Federal Labor Relations Authority, 1111 - 18th Street, N.W., Room 700, P.O. Box 33758, Washington, D.C. 20033-0758, in writing, within 30 days from the date of this order, as to what steps have been taken to comply herewith. GARVIN LEE OLIVER Administrative Law Judge Dated: May 25, 1983 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 negotiate in good faith with the National Treasury Employees Union, the exclusive representative of our employees, concerning the bargaining proposals submitted on March 10, 1982 with respect to reimbursement of costs and administrative leave for certain continuing legal education courses. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce 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, the exclusive representative of our employees, negotiate in good faith concerning the bargaining proposals submitted on March 10, 1982 with respect to reimbursement of costs and administrative leave for certain continuing legal education courses. (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 Three, whose address is: 1111 - 18th Street, N.W., Room 700, P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8507. --------------- FOOTNOTES$ --------------- /1/ See also Missouri National Guard, Office of the Adjutant General, Jefferson City, Missouri, 18 FLRA No. 44 (1985); Internal Revenue Service (District Office Unit), Department of the Treasury, 18 FLRA No. 48 (1985). /2/ The suggestions by the Authority as to how the proposals might be modified so as to be rendered negotiable were merely meant to be helpful guidance for the parties to use at such time as negotiations would subsequently be appropriate, and clearly cannot be interpreted as a finding that they were negotiable. /3/ There were apparently other proposals which were declared nonnegotiable which were not withdrawn from the table by the Union. (Tr. 59-60.) /4/ At no time between the Union's filing of a negotiability appeal with the FLRA in May of 1979, and the FLRA's decision on this matter in September 1981, including the approximately twenty-two months following the Union's December 1979 withdrawal of the proposals from the bargaining table, did Respondent or the Union ever file a motion or other document with the FLRA contending that any resolution or agreement had been reached on these proposals. (Tr. 35.) Such non-action with respect to O-NG-71, dealing with the two proposals on continuing legal education, is in contrast to action taken by the parties on two other negotiability appeals. In one case, the IRS informed the Authority of the execution of an agreement covering the dispute and moved to dismiss the appeal. (General Counsel's Ex. 9.) In another, the Union requested the Authority to withdraw an appeal. (General Counsel's Ex. 7.) /5/ That the specific proposals were ultimately declared nonnegotiable did not, in and of itself, relieve Respondent of an obligation to bargain over proposals specifically revised to conform to the requirements set forth in the negotiability decision. In this regard, the Authority's decision, as noted, included specific guidance on how the proposals could be revised to make them negotiable. See also Internal Revenue Service, 9 FLRA No. 27 (1982), where the Authority determined that the agency was obligated to bargain over a revised proposal submitted by the Union following dismissal of the Union's negotiability appeal before the Federal Labor Relations Council.