United States of America
BEFORE THE FEDERAL SERVICE
|In the Matter of
DEPARTMENT OF THE TREASURY
NATIONAL TREASURY EMPLOYEES UNION
Case No. 05 FSIP 17
DECISION AND ORDER
The Department of the Treasury, Internal Revenue Service, Washington, D.C. (Employer or IRS) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the National Treasury Employees Union (Union or NTEU).
After investigation of the request for assistance, involving a dispute over the Employer's decision to reorganize the Case Processing and Insolvency (CP & I) functions within the Case Management - Small Business/Self-Employed Operating Division, and to conduct a reduction in force (RIF) in both functions,1/ the Panel directed the parties to resume bargaining on a concentrated schedule, with the assistance of the Federal Mediation and Conciliation Service (FMCS), during the period from January 10 through January 31, 2005. If a complete settlement was not reached, the parties were instructed to submit their final offers by close of business on January 31, 2005, and supporting statements of position of no more than 15 pages in length (excluding attachments) by close of business on February 11, 2005. After considering the entire record, the Panel would resolve the dispute through the issuance of a Decision and Order by selecting either of the parties' final offers on a package basis, to the extent they otherwise appear to be legal.
The parties met with and without the assistance of FMCS during the 3rd week of the 3-week period directed by the Panel for the resumption of bargaining, and reached an agreement on strategies for mitigating the impact of the RIF on affected bargaining-unit employees.2/ In addition, on January 21, 2005, the Union filed a "Motion for Reconsideration" of the Panel's procedural determination to assert jurisdiction and, in the alternative, a request that the Panel "reconsider the imposed deadlines" for the reasons provided therein.3/ Nevertheless, in accordance with the Panel's procedural determination, the parties submitted final offers regarding a document entitled "Case Processing & Insolvency Agreement Covering Workload Consolidation and RIF Between Internal Revenue Service and National Treasury Employees Union" (referred to hereafter as "the Agreement"), and supporting statements of position. The Panel has now considered the entire record.
The Employer's mission is to fairly enforce tax laws, respect taxpayer rights, collect taxes and help educate the taxpayer. The Union represents a bargaining unit consisting of approximately 90,000 professional and nonprofessional employees stationed nationwide at the Headquarters Office, Service Centers, Regional Offices, and numerous field offices. A National Agreement (NA) that went into effect on July 1, 2002, for a 4-year term, ending June 30, 2006, covers the parties.
ISSUES AT IMPASSE
The parties disagree over numerous RIF-related issues, as described more fully below.
THE PARTIES' POSITIONS
1. The Union's Position
Attachment A contains the full text of the Union's final offer on the Agreement. Concerning the main areas where the parties remain at impasse, the Union proposes the following: (1) Certificates of Expected Separation (CES) would be issued to all employees affected by the RIF on March 30, 2005, RIF notices would be issued on July 25, and the off-roll date would be September 30, 2005; the Union would receive notification if the Employer postpones the off-roll date and an additional opportunity to bargain; (2) the Employer would be required to conduct an "adverse impact analysis" to determine whether any protected class will be adversely impacted by the RIF, to provide the Union with the results of the analysis and the data used, and give the Union 10 days to review and submit comments before RIF notices issued; (3) Employees would be given a reasonable amount of time to meet with Union representatives to review their summary RIF notices and to discuss the accuracy of the data contained therein if they decide it is necessary; (4) the Employer would be required to conduct a formal briefing for the Union on the impact of the proposed RIF on the work remaining in the CP & I functions before any part of the Agreement could be implemented, and the parties would bargain through impasse on this issue before the Employer could take any steps to implement the RIF; (5) in connection with the impact of the proposed RIF on the work remaining in the CP & I functions, among other things, hiring at the centralized sites would be done on a staggered basis in accordance with need based on the shift of work from the field offices, and the Union would be notified of each wave of hires nationally and locally, and training would be conducted for employees at the centralized sites as each wave of employees is hired, to include a minimum of 160 hours in the classroom and 6 months of on the job instruction (OJI); (6) regarding the impact of the RIF on employees outside the CP & I functions, among other things, Revenue Agents, Revenue Officers, Tax Compliance Officers, QMS and Advisory employees, Counsel employees, Appeals employees, Taxpayer Advocate employees, Taxpayer Education and Communication employees, SPEC employees, Field Assistance employees, Field secretaries, LMSB employees, and PSP employees would be trained on a variety of new procedures implemented due to the relocation of CP & I functions to the centralized sites; (7) the parties would bargain locally regarding any changes in local procedures or issues not specifically addressed in the sections of the Agreement that deal with the consolidation of the CP & I functions; (8) the Employer would provide training on RIF-related matters for four Union stewards from each Chapter affected by the RIF in a format of its choosing, but covering a variety of identified subjects, and Chapters would have the opportunity to bargain local implementation and impact issues not specifically addressed by the Agreement; (9) unless permitted by law, the status quo, defined as the "continuation of working conditions in the CP & I as they existed prior to the quarterly and RIF notices," would be maintained until all negotiations over the proposed RIF are completed; and (10) any declarations during agency head review that provisions in the Agreement are nonnegotiable will stay the effective date of the remaining provisions in the Agreement until the FLRA issues a ruling and the parties can meet and discuss the ruling.
The Union's proposed timeline is reasonable because it is consistent with the Employer's ultimate goal of completing the RIF by September 30, 2005. It has not included a June 25, 2005, off-rolls date because the Employer has refused to provide information identifying the employees who would be affected at that time. In fact, the Union was informed by the Agency that the off-rolls date "may not be necessary." More importantly, as of February 11, 2005, the Employer has nearly achieved its goal of having 500 of 1,262 impacted employees leave the rolls, so "there is no business or other rationale for maintaining the June 25, 2005, off-rolls date." The Panel should adopt the Union's wording that CES notices be issued on March 30, 2005, because it would permit affected employees to receive statutory benefits for the maximum amount of time (6 months) provided by law. This would ensure further reductions in the number of adversely affected employees and is consistent with the Employer's bargaining position in current mid-term reopener negotiations.
Its wording regarding possible changes in the proposed off-rolls date is superior to the Employer's because it merely requires the Union to be notified if the RIF is postponed, "placing little, if any burden on the Agency." Under the Employer's proposal, management would have "complete freedom" to expedite the RIF process "without any obligation to bargain over the impact of such a decision." This would constitute a change in working conditions subject to the duty to bargain in good faith that could place employees "in great peril." Permitting four stewards per NTEU Chapter to attend RIF training would provide backups to explain the RIF process to employees, is not unduly burdensome to the Employer because the stewards' attendance is "subject to the right to assign work," and is more consistent with previous RIF agreements reached by the parties than the Employer's proposal. The portion of the Union's final offer requiring the Employer to maintain the status quo until bargaining over the proposed RIF is complete would prohibit implementation until the Panel issues its decision in this matter, and "places no burden on the Agency." If the Employer moves forward with its RIF plan prior to the issuance of a decision the authority of the Panel would be undermined, and such action "would constitute an unfair labor practice."
In its "haste to reduce" the CP & I rolls, the Employer has neglected to address the second bargaining obligation concerning its decision to reorganize these functions, i.e., the "stand-up" of the new organizations. Even though the Union has "received no formal briefing on this issue," its proposals are responsive to the needs of the employees who will remain, be hired, or be transferred to these new organizations, and those employees outside these new organizations whose conditions of employment also will change. As such, its proposals should be adopted because they preserve the Union's statutory right to negotiate over these changes. Finally, performing an adverse impact study prior to conducting the RIF "is important to ensure that the Agency is not in violation of any EEO laws or regulations." The Employer's proposal to require the Union to conduct the study should be rejected, among other reasons, because management is unwilling to provide data sufficient to perform an accurate study, and it is the Employer's responsibility to conduct such studies under the law and regulations.4/ The Union's proposals regarding this matter, on the other hand, "conform more closely to the law and regulation" and ensure that the decision to run the RIF "involves valid and justifiable selection procedures." Compliance with EEOC's Guidelines would not be "unduly burdensome," is a sound business practice, and ultimately is in the Employer's interests by serving as an "insurance policy against lawsuits alleging discrimination."
2. The Employer's Position
Attachment B contains the full text of the Employer's final offer on the Agreement. In the main areas where the parties remain at impasse, the Employer proposes the following: (1) RIF notification to employees would occur in two phases, on April 18 and June 25, 2005, and if the Employer changes off-roll dates to provide additional mitigation strategies for affected employees, the Union would not be given an additional opportunity to bargain; (2) the Employer would provide the Union with EEO data on race, age, national origin, gender, and disability status for affected employees within 10 workdays of the implementation of the Agreement, the Union would provide the Employer with the results of any adverse impact studies it decides to conduct using the data within 15 workdays thereafter, and the Employer would consider the information and provide the Union with a response within 10 workdays; (3) employees would be given a reasonable amount of time, not to exceed 1 hour, to meet with Union representatives to review summary RIF notices and discuss the accuracy of data contained therein if they decide it is necessary; (4) the Employer would provide training on RIF-related matters for 1 Union steward from each Chapter affected by the RIF in a format of its choosing; (5) the impact on local offices of the Employer's decision to consolidate the CP & I functions would be bargained locally in separate MOUs in accordance with parameters established by the national parties, but these negotiations would not delay implementation of the Agreement; and (6) any declarations during agency head review that provisions in the Agreement are nonnegotiable would not stay its effective date.
Overall, the "primary difference" between the parties' final offers is that the Union's would require the Agency to "stop its planned RIF and continue negotiating with the Union." The parties have had "more than enough time to negotiate over these matters," however, and "it is now time for this impasse to be resolved" so the planned RIF can be completed. More specifically, the Employer's final offer establishes a reasonable timetable for implementing its business-based decision to consolidate the CP & I functions and conduct the RIF. While it would cancel the phase of the RIF proposed to occur in June 2005 if it meets its targeted reduction of an additional 300 employees by April, its non-specific wording on when CES notices would be issued is consistent with its inability to predict when a final decision by the Panel in this case would occur, but still ensures they will be issued as early as possible. The Employer also clarifies that the portion of its final offer stating that the off-rolls dates are subject to "change" was "not as precisely written as it could have been." In this regard, the intent of its wording is not to give it the flexibility to move a RIF target date forward, but to eliminate any bargaining obligation if it extends the RIF separation date to permit employees sufficient time to take advantage of mitigation opportunities.
With respect to the "stand-up" of the new CP & I organizations, the Employer challenges the accuracy of the Union's claim that it was never given a briefing on this aspect of the initiative. In any event, if the impact of the consolidation on employees remaining in the field is more than de minimis, the parties apparently agree that negotiations over this matter can be negotiated locally. Thus, "there is no reason to stop the RIF to provide National NTEU the opportunity to negotiate such local changes nationally." The Union's attempt to require the Employer to identify and negotiate over all aspects of the consolidation before it may conduct the RIF is outside the duty to bargain because it imposes a substantive restriction on management's right to layoff employees, under section 7106(a)(2)(A) of the Statute.5/ In addition, most of the Union's specific proposals addressing the impact of the consolidation on employees' conditions of employment "are nonnegotiable" for a variety of reasons, among them, (1) inconsistency with management's rights to assign work, direct employees, and determine the organization, (2) because they are covered by the parties' National Agreement, or (3) concern a bargaining unit (employees of the Office of Chief Counsel) not a part of this case. Moreover, the Union "should not be surprised" by the Employer's nonnegotiability allegations because these arguments were raised at the time the same proposals were placed on the bargaining table prior to the Employer's request for FMCS assistance in June 2004.
On the issue of who should perform an adverse impact analysis, contrary to the Union's implication, the Employer is not aware of any law requiring it to conduct one before it implements a RIF. The EEOC Guidelines cited by the Union to support its position, for example, "do not apply to RIFs." It also would be a "Herculean task" for management to measure the impact of each neutral employment decision made in the RIF process, as required by the courts in disparate impact cases, and "such analyses would have little value." This is because the RIF process is highly regulated, and management has little discretion when conducting one. Even if disparate impact was found, the law "does not require the Agency to cancel the RIF," but to establish a business justification for the decision. The Employer believes it already has done so, and taken "appropriate measures to ameliorate the impact of that decision on all of its employees." Its proposal to provide the Union with data to conduct its own adverse agency impact analysis "is an adequate compromise, which takes into consideration the Union's concerns."
Having carefully considered the evidence and arguments presented by the parties in support of their proposals concerning the RIF in the CP & I functions, we shall order the adoption of the Employer's final offer to resolve their impasse. In our view, it strikes a more appropriate balance between the interests of employees and the Union, and management's business-based need to conduct the RIF. For example, the impact of the consolidation of the CP & I functions on employees remaining with the IRS after the RIF can be addressed adequately through negotiations at the local level without interfering with the proposed RIF target dates. In addition, the Employer has clarified the meaning of its proposal to ensure the Union that it does not intend to move the RIF target date forward. The Union's final offer, among other things, attempts to link the implementation of the RIF with the completion of bargaining over the "stand-up" of the new organizations. The legality of this approach is questionable, as are its specific proposals regarding the latter subject. The Union also has provided insufficient grounds for requiring the Employer to conduct an adverse impact analysis, involving considerable administrative burden, before the RIF can be implemented.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:
The parties shall adopt the Employer's final offer.
By direction of the Panel.
H. Joseph Schimansky
March 25, 2005
/ At the time the request was filed, approximately 915 employees in the Case Processing function would be affected by the Employer’s plan to centralize about 84 different posts of duty (POD) into 4 PODs located at the IRS’s Philadelphia, Cincinnati, Memphis and Ogden Compliance Services Centers. Approximately 207 tax examiners and clerks in the Insolvency function would be affected by the decision to relocate those employees from about 76 different PODs into the Philadelphia Compliance Services Center.
/ Their agreement addresses such matters as outplacement services, assistance for employees with disabilities, Voluntary Early Retirement Authority (VERA) and Voluntary Separation Incentive Pay (VSIP), indirect VERA and VSIP, benefits, reassignment preference, part-time job sharing and job swapping opportunities, voluntary relocations outside the commuting area, relocation within the commuting area, and affected employees’ access to the Human Resources Investment Fund.
/ The Panel has reviewed the Union’s “Motion for Reconsideration” and the Employer’s “Response to Union’s Motion for Reconsideration/Extension of Time” (submitted on January 31, 2005), and finds that the Union has raised no new facts or circumstances that the Panel was unaware of when it made its initial determination to assert jurisdiction over the case. Accordingly, the Union’s “Motion for Reconsideration” and request to reconsider the Panel’s previously-imposed deadlines are hereby denied.
/ The Union cites Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission’s (EEOC) Uniform Guidelines on Employee Selection Procedures (Guidelines), and various court cases in this connection.