[ v13 p366 ]
13:0366(61)CA
The decision of the Authority follows:
13 FLRA No. 61
INTERNAL REVENUE SERVICE (DISTRICT,
REGION, NATIONAL OFFICE UNIT)
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-1067
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that 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 with respect to the
Judge's Decision and the Charging Party filed a response in opposition.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and Recommended Order.
In agreement with the Judge, the Authority finds that the Respondent
(IRS) violated section 7116(a)(1) and (5) of the Statute when it
unilaterally implemented the revised Unit IV Corporate Income Tax
Training Program for Revenue Agents without affording the exclusive
representative, National Treasury Employees Union (NTEU), prior notice
and an opportunity to request bargaining on procedures and/or
appropriate arrangements for bargaining unit employees affected by the
revised training course. See Internal Revenue Service (District, Region
and National Office Unit and Service Center Unit), 10 FLRA No. 61
(1982). /1/
Further, the Authority finds that the status quo ante remedy
recommended by the Judge is warranted. Such conclusion is based upon a
careful balancing and consideration of the specific factors enumerated
in Federal Correctional Institution, 8 FLRA No. 111 (1982).
Specifically, in this case, the Respondent substantially revised its
Unit IV Corporate Income Tax Training Program and implemented it
nationwide without any prior notice to or bargaining with NTEU.
Thereafter, NTEU requested bargaining and its request was refused.
Moreover, the Respondent's unilateral changes had the effect of denying
all GS-7 and GS-9 employees nationwide an opportunity to participate in
the classroom phase of such training although they had previously been
eligible, and thus denied these employees the opportunity to handle
complex corporate income tax returns so to better enhance their career
and professional development. Additionally, by unilaterally
establishing a new requirement that entry into the classroom phase of
training would be limited to those Revenue Agents who successfully
completed a pre-classroom phase, the Respondent precluded many unit
employees nationwide from participating therein. As a result,
bargaining unit employees were significantly impacted by the
Respondent's violation of its bargaining obligation. In contrast, it
does not appear that a status quo ante remedy would disrupt or impair
the efficiency and effectiveness of IRS's operations. Rather, it would
merely require IRS to reinstitute its preexisting policy of providing
classroom training to all previously eligible employees pending
negotiations with NTEU. Accordingly, the Authority concludes that a
status quo ante remedy is appropriate in order to best effectuate the
purposes and policies of the Statute. See Internal Revenue Service
(District, Region and National Office Unit and Service Center Unit), 10
FLRA No. 61 (1982). /2/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the Internal Revenue Service (District,
Region, National Office Unit), shall:
1. Cease and desist from:
(a) Instituting unilateral changes in the Unit IV Corporate Income
Tax Training Program for Revenue Agents, including the establishment of
a pre-classroom phase of the Unit IV Training Program and an extension
of the classroom phase of the Unit IV Training Program without affording
the National Treasury Employees Union, the exclusive representative of
the affected employees, an opportunity to negotiate concerning the
impact of the changes in the Unit IV Training Program on bargaining unit
employees, and the methods and procedures to be utilized in implementing
these changes.
(b) Denying GS-7 and GS-9 Revenue Agents entry into the pre-classroom
phase, and thus the classroom phase of the Unit IV Corporate Income Tax
Training Program and denying entry into the classroom phase of the Unit
IV Training Program to any Revenue Agent based upon his/her performance
during the pre-classroom phase of the Unit IV Training Program, pending
negotiations, if requested, with the National Treasury Employees Union
concerning the impact of these changes on bargaining unit employees and
the methods and procedures to be utilized in implementing these changes.
(c) 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 by the National Treasury Employees Union, the
exclusive representative of its employees, negotiate concerning the
impact of the changes in the Unit IV Corporate Income Tax Training
Program for Revenue Agents on bargaining unit employees, and the methods
and procedures to be utilized in implementing these changes.
(b) Offer the option of entering the classroom phase of training to
all Revenue Agents who have been denied entry into the classroom phase
of the Unit IV Corporate Income Tax Training Program based upon the
unilateral changes herein, pending negotiations, if requested, with the
National Treasury Employees Union concerning the impact of the changes
in the Unit IV Training Program on bargaining unit employees and the
methods and procedures to be utilized in implementing these changes.
(c) Remove all indications of failure from the records of all
employees who were denied entry into the classroom phase of training
because of failure in the pre-classroom phase of the Unit IV Corporate
Income Tax Training Program.
(d) Post at all Department of the Treasury, Internal Revenue Service
facilities and installations, nationwide, copies of the attached Notice
on forms to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms, they shall be signed by the Regional
Commissioner, or his designee, and shall be posted and maintained for a
period of 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, 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.
Issued, Washington, D.C., November 3, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute unilateral changes in the Unit IV Corporate Income
Tax Training Program for Revenue Agents, including the establishment of
a pre-classroom phase of the Unit IV Training Program and an extension
of the classroom phase of the Unit IV Training Program without affording
the National Treasury Employees Union, the exclusive representative of
the affected employees, an opportunity to negotiate concerning the
impact of the changes in the Unit IV Training Program on bargaining unit
employees and the methods and procedures to be utilized in implementing
these changes. WE WILL NOT deny GS-7 and GS-9 Revenue Agents entry into
the pre-classroom phase, and thus the classroom phase, of the Unit IV
Corporate Income Tax Training Program or deny entry into the classroom
phase of the Unit IV Training Program to any Revenue Agent based upon
his/her performance during the pre-classroom phase of the Unit IV
Training Program, pending negotiations, if requested, with the National
Treasury Employees Union concerning the impact of these changes on
bargaining unit employees and the methods and procedures to be utilized
in implementing these changes. 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 by the National Treasury
Employees Union, the exclusive representative of our employees,
negotiate concerning the impact of the changes in the Unit IV Corporate
Income Tax Training Program for Revenue Agents on bargaining unit
employees, and the methods and procedures to be utilized in implementing
these changes. WE WILL offer the option of entering the classroom phase
of training to all Revenue Agents who have been denied entry into the
classroom phase of the Unit IV Corporate Income Tax Training Program
based upon the unilateral changes herein, pending negotiations, if
requested, with the National Treasury Employees Union concerning the
impact of the changes in the Unit IV Training Program on bargaining unit
employees and the methods and procedures to be utilized in implementing
these changes. WE WILL remove all indications of failure from the
records of all employees who were denied entry into the classroom phase
of training because of failure in the pre-classroom phase of the Unit IV
Corporate Income Tax Training Program.
(Activity)
Dated: . . . By: (Signature) (Title) 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 its provisions,
they may communicate directly with the Regional Director, Region III,
Federal Labor Relations Authority, whose address is: P.O. Box 33758,
Washington, D.C. 20033-0758, and whose telephone number is: (202)
653-8507.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-1067
BRUCE H. Kennedy, Esq.
William T. Lyons, Esq.
For the Respondent
Sharyn Danch, Esq.
For the Charging Party
Clara A. Williamson, Esq.
For the General Counsel
Before: FRANCIS E. DOWD
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
U.S.C. 7101, et seq. It was instituted by the Acting Regional Director
of the Third Region of the Federal Labor Relations Authority by the
issuance of a Complaint and Notice of Hearing dated July 28, 1980. The
Complaint was issued following an investigation of an unfair labor
practice charge filed on April 3, 1980 by National Treasury Employees
Union, herein referred to as the Charging Party, Union or NTEU. The
Complaint alleges that Internal Revenue (District, Region, National
Office Unit), herein referred to as Respondent or IRS, violated Section
7116(a)(1) and (5) of the Statute by implementing, on a national scale,
certain changes relative to the establishment of a pre-classroom phase
of Unit IV Corporate Income Tax Training for revenue agents, without
prior notification to or negotiation with the Union. Further, it is
alleged that Respondent has failed and refused to negotiate in good
faith with the Union concerning the impact of the charge on unit
employees and the methods and procedures to be utilized in implementing
the changes. Respondent denies any violation of the Statute and asserts
that it fully bargained in good faith with respect to the impact and
implementation of all "job related" training during the negotiations
over the current contract.
A hearing was held in Washington, D.C. at which the parties were
represented by counsel and afforded full opportunity to adduce evidence
and call, examine, and cross-examine witnesses and argue orally. Briefs
filed by Respondent, Charging Party and the General Counsel have been
duly considered.
Prior to the original date of the scheduled hearing, Respondent made
a request to postpone the hearing due to the unavailability of its major
witnesses. This request was granted by the Chief Judge. No request for
postponement was made at anytime by the Charging Party or the General
Counsel, even though they apparently knew one of their witnesses might
not be available because he was appearing as a witness at another FLRA
hearing the same day. On the morning of the hearing this potential
problem was brought to my attention and I made it clear to the parties
that it was the responsibility of Counsel for the General Counsel to
have all her witnesses present, just as Respondent had its witnesses
present. Furthermore, it is my recollection that the witness, J.
Russell Bowden, was not a witness essential to presentation of the
General Counsel's case in chief, but rather, a possible witness for
rebuttal depending upon the testimony presented by Respondent. Upon
conclusion of the Respondent's case, a brief delay in the proceeding was
granted in order that Counsel for the General Counsel could locate its
rebuttal witness who was not present, as she had expected. She was
unable to locate him so I closed the hearing after denying a request by
the Charging Party to submit Mr. Bowden's testimony "in some other form"
post-hearing. Attached to the Charging Party's brief is a motion to
reopen the hearing in order to receive the testimony of Mr. Bowden whose
testimony is alleged to be necessary because he is the only available
expert competent to testify for NTEU regarding the bargaining history.
If this is so, it seems to me that a request to postpone the hearing
should have been made initially as arrangements should have been made to
assure Mr. Bowden's attendance at the scheduling hearing. When a
hearing is scheduled, all parties are expected to have their witnesses
ready and available to testify. This case involves no element of
surprise. Counsel for the General Counsel anticipated the possible need
for Mr. Bowden's testimony but, whatever arrangements were made with Mr.
Bowden, he failed to appear. The Charging Party's motion is hereby
denied.
Upon consideration of the entire record /3/ in this case, including
my evaluation of the testimony and evidence presented at the hearing,
and from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommended order.
Findings of Fact
1. The essential facts in this matter are contained in a Stipulation
between the parties (G.C. Exh. No. 1, Jt. Exh. Nos. 1-9). To the extent
possible, I have adopted verbatim the General Counsel's proposed actual
findings.
2. The Union and Respondent are parties to a collective bargaining
agreement which was effective during all times material to this
Complaint. The Union is the collective bargaining representative for
employees in four national consolidated units (Stip., para. 5).
3. On or about February 1, 1980, Respondent implemented, on a
national scale, a revised and redesigned Unit IV Corporate Income Tax
Training Program for Revenue Agents (Stip., para. 6). This Training
Program was implemented nationwide without prior notification to or
negotiation with the Union (Stip., para. 9). Respondent, by letter
dated March 7, 1980 (Jt. Exh. No. 9), in response to an inquiry from
Frank Ferris, Director of Training, NTEU, stated that information
concerning Unit IV Training was not previously shared with the Union
because pursuant to Article 12 of the collective bargaining agreement,
management believed the training was necessary for the performance of
employees' presently assigned duties or proposed assignment and further
stated that the course revision did not impact upon personnel policies,
practices, or working conditions (Stip., para. 11).
4. The revision of the Unit IV Program primarily consisted of adding
a pre-classroom phase of training, which had not previously existed, and
extending the classroom phase from 12 days to 15 days (Stip., para. 6
and 8). The pre-classroom phase of Unit IV Training was made a
prerequisite to the classroom phase of such training (Stip., para. 6).
The draft Manual Supplement setting forth the requirements of the
pre-classroom phase of Unit IV Training was transmitted to "All District
Directors 130 Southeast Region" by Memorandum dated February 14, 1980,
and stating in pertinent portions:
Attached for your information is the draft Manual Supplement
establishing guidelines and instructions for implementing the
redesigned Revenue Agent Unit IV Training Course. . . . As can be
seen in the supplement, the new Unit IV represents a radical
change from the previous training course. . . .
Section 7 of the Supplement requires that participants must be
GS-11 Revenue Agents with at least one year examination experience
after the completion of the Unit II CUT Training and will be
assigned corporate returns with complex issues upon completion of
the course. . . . The supplement also establishes rigid
guidelines in Section 8 for the Unit IV Instructors. . . . (Jt.
Exh. No. 5).
5. The provisions of the draft Manual Supplement regarding the
revisions in Unit IV Training (Jt. Exh. No. 4) were incorporated into
the final Manual Supplement (Jt. Exh. No. 6) and include the following
provisions: Section 5 entitled "Pre-Classroom Training" provides in
paragraph .01 that the following subjects will be introduced: 1.
Earnings and profits and balance sheet approaches to the examination of
corporate returns; 2. Accumulated earnings and personal holding company
tax; 3. Distributions and redemptions; 4. Liquidations. and 5.
Reorganizations. The materials to be used in the pre-classroom phase of
Unit IV Training are set forth in paragraph .02 and include a
pre-classroom guide, a commercial text, Internal Revenue Code and
Regulations, and a test booklet and answer sheet. Section 5, paragraph
.03 provides, inter alia, that the respective Group Managers will
provide each participant with a 40-hour period, preferably all at once,
to study the materials and take the test. Section 5, paragraph .04
provides that participants are allowed a maximum of 36 hours to study
the pre-classroom materials at the end of which period a 4-hour test
will be administered by the Chief, District Training and Development
Branch or his/her designee (Stip., para. 7(a)).
6. As to the admission into the classroom phase of Unit IV Training,
Section 5, paragraph .06 of the Manual Supplement provides that all
participants will automatically be eligible for the classroom phase if
they satisfactorily complete 70 percent of the objectives tested.
According to paragraph .07, where a participant has completed less than
70 percent of the objectives, the Branch Chief must certify that the
participant is ready for classroom training (Stip., para. 7(b)).
7. Regarding the selection of participants, Section 7 provides that
participants must be GS-11 Revenue Agents with at least one year of
examination experience after completing Basic Revenue Agent Training
including all classroom and on-the-job training segments. GS-7 and GS-9
Revenue Agents had previously been allowed entry into the classroom
phase of Unit IV Training (Stip., para. 7(c)).
8. In regard to the selection of instructors, Section 8 of the
Manual Supplement provides that all instructors will be GS-12 or GS-13
Revenue Agents with extensive Corporate Income Tax field examination
experience. According to the Manual provisions, in no case will they
have less than two years experience in examining Corporate Income Tax
Returns involving issues covered in Unit IV. Prior to the revision in
Unit IV Training, instructors for the classroom phase of training were
required to possess only general field experience (Stip., para. 7(d)).
9. In addition to extending the classroom phase of Unit IV Training
from 12 days to 15 days, the materials for use in the classroom phase
were increased. The classroom phase of training now includes a text,
student guide, instructors guide, and a handout package compared to the
text, instructors guide and handout material used previously (Stip.,
para. 7(e)). The pre-classroom and classroom materials were available
to Respondent's District Offices in February 1980, and subsequent to
that date orders for such materials by Respondent's various regions have
been filled (Stip., para. 9).
10. Employees, nationwide, have been denied entry into the classroom
phase of Unit IV Training based upon their performance in the
pre-classroom phase (Stip., para. 12 and 13). For example, in
Respondent's Des Moines, Iowa District, three employees failed the test
administered during the pre-classroom phase of Unit IV Training and were
denied entry into the classroom phase of such training. In the
Cincinnati, Ohio District, one employee initially failed the test, was
retested, and failed a second time. He was denied entry in the
classroom phase of Unit IV Training (Stip., para. 12). It was further
stipulated that the examples in paragraph 12 of the Stipulation were not
intended to inclusive of all individuals either admitted entry or denied
entry into the classroom phase of Unit IV Training based upon their
performance in the pre-classroom phase of Unit IV Training.
Additional Findings, Conclusions, and Discussion
11. In January 1980 Respondent and NTEU engaged in bargaining
concerning the impact and implementation of certain modifications to an
Accounting Training Program (G.C. Exh. No. 2). The General Counsel
correctly relies on this as evidence showing prior bargaining about
specific training programs. In rebuttal, Respondent attempts to draw a
distinction between "job related" and "non-job related" training.
Respondent thus suggests that the Accounting Training Program was
non-job related and therefore different from the Unit IV Training
Program which is the subject of this case. I agree with the General
Counsel that this is a distinction without a difference and I hold that
all training is job related, whether it provides an employee with skills
necessary to perform presently assigned duties, or provides skills
necessary to perform a different job. Moreover, I don't believe it
should matter whether the training is initiated and/or required by the
employer, or whether it is initiated by the employee. In this regard I
note that Article 12, Section 4 authorizes reimbursement with government
funds of approved job-related training initiated by employees. Such
provision is consistent with government regulations generally on the use
of public funds to pay for education or training. I simply cannot
accept Respondent's assertion that the Audit Accounting Program is not
job-related but is "viewed as a benefit or extension of the upward
mobility program . . . because it does not provide the employee with
skills necessary to do their presently assigned duties."
12. Mr. Irving Des Roches testified with respect to the bargaining
history of the current contract. While it is true that the word
training appears in several places in the contract, and while it is true
that Article 12 is devoted exclusively to the subject of training, I am
unable to find any contract provision which expressly waives the Union's
right to negotiate the impact and implementation of specific training
programs, or training in general. A capsule summary of Article 12 is
that the employer and union both agree that training "is a matter of
significant importance" to be encouraged by both, and funds permitting,
to be approved and paid for by the employer.
13. The testimony of Mr. Des Roches also shows that during the
negotiations the Union expressed concern about the impact of lack of
training on individual employees. As a result a provision was
negotiated (Section 2 B of Articles 33 and 34) to the effect that lack
of training was a defense in disciplinary and adverse actions. However,
as correctly asserted by the General Counsel, it is a non-sequitur to
argue that the Union's concern for employees generally has foreclosed it
from any subsequent negotiations concerning the impact and
implementation of specific training programs.
14. Respondent also contends that over the years it has made
"literally thousands" of changes in existing training programs, notified
the Union of the changes, and never received any requests to bargain.
Examples of these changes were not introduced into evidence so it's not
really clear whether the alleged changes were minor in nature or had a
substantial impact on employees. Accordingly, I am not persuaded that
there exists a long established past practice of not negotiating with
respect to job related training programs.
15. At the hearing Respondent stated that it had already fulfilled
its bargaining obligation when it negotiated the current contract.
However, in its letter to the Union dated March 7, 1980, Respondent gave
an additional reason for not having notified the Union concerning these
changes, stating that the course revisions did not impact upon personnel
policies, practices or working conditions (Stip., para. 11).
a. It is uncontroverted that the Respondent herein completely
revised its Unit IV Corporate Income Tax Training Program and that such
revision was accomplished without any notification to or negotiation
with the Union. The revisions herein constituted a substantial change
in working conditions which impacted significantly upon bargaining unit
employees. As stated in the cover memorandum distributing the draft
Manual Supplement, " . . . the new Unit IV represents a radical change
from the previous training course. . . . ". Respondent established a
pre-classroom phase of Unit IV Training which had not theretofore
existed and made the successful completion of the pre-classroom phase a
condition of entry into the classroom phase of training. GS-7 and 9
Revenue Agents had previously been allowed entry into the classroom
phase of Unit IV Training, however, pursuant to the revisions herein
GS-7 and 9 Revenue Agents are not allowed entry into pre-classroom phase
thus precluding participation in the classroom phase of training. A
condition of entry into the pre-classroom phase imposed by the revisions
is that a Revenue Agent must be a GS-11 with at least one year of
examination experience after completing Basic Revenue Agent Training,
including all classroom and on-the-job training segments (Stip., para.
7(c)).
b. The impact of denying a Revenue Agent entry into the
pre-classroom phase, and thus the classroom phase of training, is clear.
Upon completion of the classroom phase of training an agent is given
the opportunity to handle complex corporate income tax returns (Stip.,
para. 7(c)). The value to a Revenue Agent's career and professional
development through the expansion of knowledge and experience in the
area of corporate income tax is immeasurable. Conversely, severe
limitations are imposed upon a Revenue Agent by not being allowed to
take Unit IV Training. It is uncontroverted that Revenue Agents,
nationwide, throughout Respondent's various districts, have, in fact,
been denied entry into the classroom phase of training based upon their
failure to pass the test administered during the pre-classroom phase of
training (Stip., para. 12 and 13). It is my conclusion, in agreement
with the General Counsel, that Respondent's charge in the Unit IV
Corporate Income Tax Training Program had a substantial impact adversely
affecting employees.
Ultimate Conclusions of Law
There is no serious dispute as to the fact that Respondent instituted
a change in conditions of employment when it instituted the Unit IV
Training Program and I have found and concluded that such change had a
substantial impact adversely affecting employees. /4/ There is also no
dispute as to Respondent's failure to provide the NTEU with adequate
notice prior to the change so that NTEU would have a reasonable
opportunity to request bargaining. /5/ In any event, the NTEU did
request bargaining and its request was refused March 7, 1980 by
Respondent.
As previously noted, Respondent's defense is that it fulfilled its
bargaining obligation by bargaining fully with NTEU in the area of job
related training when it negotiated the existing contract. Stated
differently, Respondent is contending that NTEU has impliedly waived, by
bargaining history and practice, its right to bargain about the change
in this case.
Waiver of bargaining rights, whether by express agreement, bargaining
history, or inaction, has long been established as a legitimate defense
to the charge of refusal to bargain. /6/ The National Labor Relations
Board has held in private sector cases that "waiver of a statutory right
will not lightly be inferred" and that relinquishment of that right, to
be effective, must be "clear and unmistakable." /7/ Or, as the Board
said in the Proctor Manufacturing, case: /8/
The Board's rules, applicable to negotiations during the
contract term with respect to a subject which has been discussed
in precontract negotiations but which has not been specifically
covered in the resulting contract, is that the employer violates
Section 8(a)(5) if, during the contract term, he refuses to
bargain or takes unilateral action with respect to the particular
subject, unless it can be said from an evaluation of the prior
negotiations that the matter was "fully discussed" or "consciously
explored" and that the Union "consciously yielded" or clearly and
unmistakably waived its interest in the matter.
The National Labor Relations Board's test requiring a clear and
unmistakable waiver has been applied in cases arising under the
Executive Order /9/ and has been adopted by the Authority with respect
to cases arising under the Statute. /10/
I have carefully reviewed the testimony of Respondent's witnesses
concerning the bargaining history and past practice, and I have
carefully examined the contractual provisions referred to by Respondent.
Based upon this review, I am unable to find an express or implied
waiver on the part of NTEU. I am especially unpersuaded that the
evidence establishes that the Union consciously yielded or clearly and
unmistakably waived its right to bargain concerning the impact and
implementation of any changes made by Respondent in its training
programs. Accordingly, I conclude that Respondent violated Section
7116(a)(1) and (5) by its refusal to notify and bargain with NTEU.
Remedy
The Respondent, in opposing a status quo remedy, cites cases arising
under the Executive Order wherein the Assistant Secretary and the
Federal Labor Relations Council confined such remedy only to cases where
the unilateral change concerned a subject matter within the purview of
Section 11(a) of the Order. /11/ However, as noted in the Charging
Party's brief, the Executive Order has been superceded by the Statute
and it is clear from Section 7106(b)(2) and (3) that rights reserved to
management do not preclude negotiations concerning the procedures to be
observed in exercising those rights and the impact on employees
adversely affected. In a negotiability case, the Authority has held
that as long as an agency is not prevented "from acting at all," it can
no longer argue that a delay in implementation would negate its
management rights. /12/ Moreover, in unfair labor practice cases, the
Authority has ordered a status quo remedy where to do so "would not
create a serious disruption of the Activity's operation." /13/
In the present case the General Counsel is not seeking the
termination of an ongoing training program. Rather, the General Counsel
merely seeks to have the agency cease and desist from implementing those
changes in the program which had the adverse effect of (1) denying GS-7
and 9 Revenue Agents entry into the pre-classroom phase and (2) denying
Revenue Agents from entry into the classroom phase based upon their
performance in the pre-classroom phase. It doesn't appear to me that
the granting of this order would result in a serious disruption of the
Respondent's operation and, therefore, I recommend this proposed order
be granted.
The General Counsel also requests that Respondent be ordered to
remedy the adverse effects on all Revenue Agents affected by the changes
herein by offering to all Revenue Agents who were denied entry into the
classroom phase of Unit IV Training the option of admission into the
classroom phase of such training, which is an option these employees
would have had but for the Respondent's illegal conduct herein. In my
opinion, such an order is an eminently reasonable remedy which will not
create a serious disruption of the Respondent's operations.
In its brief, the Charging Party requests that Respondent be ordered
to remove indications of failure from the records of all employees
denied entry into the classroom phase of training because of failure of
the pre-classroom phase. But for the Respondent's illegal conduct in
unilaterally requiring the completion of the pre-classroom phase with
unilaterally determined requirements for achieving a passing grade, it
is conceivable that some or all who failed the pre-classroom phase might
not otherwise have failed a lawfully negotiated program. In these
circumstances, the Charging Party's proposal seems like a reasonable
remedy to redress an unlawful action.
Finally, the General Counsel requests that an appropriate notice be
posted at all Respondent's locations, nationwide. I agree that such a
posting is necessary to remedy the violation herein.
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations, and Section 7118 of the Statute, the
Authority hereby orders that the Internal Revenue Service (District,
Region, National Office Unit):
1. Cease and desist from:
(a) Instituting unilateral changes in the Unit IV Corporate
Income Tax Training Program for Revenue Agents, including the
establishment of a pre-classroom phase of Unit IV Training and an
extension of the classroom phase of Unit IV Training, without
affording the National Treasury Employees Union, the exclusive
representative of the affected employees, an opportunity to
negotiate, to the extent consonant with law and regulations,
concerning the impact of the changes in the Unit IV Training
Program on bargaining unit employees and the methods and
procedures to be utilized in implementing these changes;
(b) Denying GS-7 and GS-9 Revenue Agents entry into the
pre-classroom phase, and thus the classroom phase, of Unit IV
Corporate Income Tax Training and denying entry into the classroom
phase of Unit IV Training to any Revenue Agent based upon his/her
performance during the pre-classroom phase of Unit IV Training,
pending negotiations with the National Treasury Employees Union
concerning the impact of these changes on bargaining unit
employees and the methods and procedures to be utilized in
implementing these changes; and
(c) 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:
(a) Upon request by the National Treasury Employees Union, the
exclusive representative of its employees, meet and confer, to the
extent consonant with law and regulations, concerning the impact
of the changes in the Unit IV Corporate Income Tax Program for
Revenue Agents on bargaining unit employees, and the methods and
procedures to be utilized in implementing these changes;
(b) Offer to all Revenue Agents who have been denied entry into
the classroom phase of Unit IV Training, pursuant to the revisions
herein, the option of entering the classroom phase of training,
pending negotiations with the National Treasury Employees Union,
concerning the impact of the changes in the Unit IV Training
Program on bargaining unit employees, and the methods and
procedures to be utilized in implementing these changes;
(c) Remove all indications of failure from the records of all
employees who were denied entry into the classroom phase of the
Unit IV Corporate Income Tax Training Program.
(d) Post at all Department of the Treasury, Internal Revenue
Service facilities and installations, nationwide, copies of the
attached "Notice to All Employees' marked "Appendix" on forms to
be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms, they shall be signed by the Regional
Commissioner and shall be posted and maintained by him for a
period of 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notice to
employees are customarily posted. The Regional Commissioner shall
take reasonable steps to insure that such notices are not altered,
defaced, or covered by any other material; and
(e) 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.
FRANCIS E. DOWD
Administrative Law Judge
Dated: May 3, 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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally institute changes in the Unit IV Corporate
Income Tax Training Program for Revenue Agents, including the
establishment of a pre-classroom phase of Unit IV Training and an
extension of the classroom phase of Unit IV Training without affording
the NATIONAL TREASURY EMPLOYEES UNION, the exclusive representative of
the affected employees, a reasonable opportunity to meet and confer, to
the extent consonant with law and regulations, concerning the impact of
these changes on bargaining unit employees and the methods and
procedures to be utilized in implementing these changes. WE WILL, upon
request by the NATIONAL TREASURY EMPLOYEES UNION, the exclusive
representative of our employees, meet and confer, to the extent
consonant with law and regulations, concerning the impact of the changes
in the Unit IV Corporate Income Tax Training Program for Revenue Agents
and the methods and procedures to be utilized in implementing these
changes. WE WILL NOT deny GS-7 and GS-9 Revenue Agents entry into the
pre-classroom phase, and thus the classroom phase, of Unit IV Corporate
Income Tax Training or deny any Revenue Agent entry into the classroom
phase of Unit IV Training based upon his/her performance during the
pre-classroom phase of Unit IV Training, pending negotiations with the
NATIONAL TREASURY EMPLOYEES UNION, concerning the impact of these
changes on bargaining unit employees and the methods and procedures to
be utilized in implementing these changes. WE WILL offer to all Revenue
Agents who have been denied entry into the classroom phase of Unit IV
Corporate Income Tax Training, the option of entering the classroom
phase of training, pending negotiations with the NATIONAL TREASURY
EMPLOYEES UNION, concerning the impact of the changes in the Unit IV
Training Program on bargaining unit employees and the methods and
procedures to be utilized in implementing these changes. WE WILL remove
all indications of failure from the records of all employees who were
denied entry into the classroom phase of training because of failure in
the pre-classroom phase of the Unit IV Corporate Income Tax Training
Program. 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.
INTERNAL REVENUE SERVICE
(DISTRICT,
REGION, NATIONAL OFFICE UNIT)
(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
question concerning this Notice or compliance with its provisions, they
may communicate directly with the Regional Director for the Federal
Labor Relations Authority whose address is: 1111 18th Street, NW.,
Suite 700, Washington, D.C. 20036; telephone number (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ While it does not affect the disposition of this case, the
Authority notes that it has not "adopted the substantial impact test" as
suggested by the Judge in n.4 of his Decision. See U.S. Government
Printing Office, 13 FLRA No. 39 (1983), decided by the Authority after
the Judge issued his Decision herein.
/2/ General Counsel has not sought and the Judge's Recommended Order
does not require the elimination of the pre-classroom phase from the
ongoing training program. NTEU, in its opposition to the Respondent's
exceptions, supports the Judge's Recommended Order. Accordingly, the
Authority adopts such Order herein.
/3/ General Counsel's motion, in which Respondent concurs, to reopen
the record for the limited purpose of receiving Joint Exhibit No. 9 into
evidence is hereby granted. Joint Exhibit No. 9 is hereby received into
evidence and made part of the record.
/4/ The Authority has adopted the substantial impact test previously
utilized by the Council in cases arising under the Executive Order.
Office of Program Operations, Field Operations, SSA, San Francisco
Region, 5 FLRA No. 45. See also my discussion of this subject in U.S.
Government Printing Office, 3-CA-549 (April 9, 1981), which is pending
before the Authority.
/5/ The Authority requires appropriate advance notice to a union
official, in his capacity as a union representative. United States Air
Force, Air Force Logistics Command, Newark, Ohio, 4 FLRA No. 70.
/6/ The Developing Labor Law, Bureau of National Affairs (1971), pp.
332-338.
/7/ C & C Plywood Corporation, 148 NLRB 414, 57 LRRM 1015 (1964).
/8/ Proctor Manufacturing Corporation, 131 NLRB 1166, 1168, 48 LRRM
1222 (1961).
/9/ NASA, Kennedy Space Center, Florida, 2 A/SLMR 566; U.S. Army
Finance and Accounting Center, Fort Benjamin Harrison, 6 A/SLMR 216;
Internal Revenue Service, National Office, 8 A/SLMR 764.
/10/ Department of the Air Force, Scott Air Force Base, Illinois, 5
FLRA No. 2; Department of the Air Force, U.S. Air Force Academy, 6 FLRA
No. 100.
/11/ Department of the Treasury, Internal Revenue Service, Manhattan
District, 7 A/SLMR 418; Department of the Navy, Naval Plant
Representative Office, Baltimore, MD, FLRC No. 75A-59, 3 FLRC 529;
Department of the Treasury, Internal Revenue Service, Southwest Region,
Dallas, Texas, 7 A/SLMR 523.
/12/ NTEU and U.S. Customs Service Region VIII, 2 FLRA No. 30, 2 FLRA
255.
/13/ San Antonio Air Logistics Center (AFLC), Kelly Air Force Base, 5
FLRA No. 22 (1981); Norfolk Naval Shipyard, Portsmouth, Virginia, 6
FLRA No. 22 (1981).