[ v15 p829 ]
15:0829(159)CA
The decision of the Authority follows:
15 FLRA No. 159
DEPARTMENT OF TREASURY
INTERNAL REVENUE SERVICE
MEMPHIS SERVICE CENTER
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 4-CA-20234
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that 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 Charging Party filed exceptions to the Judge's
Decision and the Respondent filed an opposition thereto.
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 as modified herein.
The Judge concluded that the Respondent violated section 7116(a)(1)
and (5) of the Statute /1/ by (1) refusing to negotiate concerning a
proposal by the Charging Party (the Union) that first consideration for
vacancies be accorded to certain employees in the Input Perfection
Branch whose career ladder had been reduced from the GS-5 to the GS-4
level in the event that management reestablished the GS-5 career ladder,
and (2) failing to adhere to its agreement with the Union that the
transfer of seven employees to new positions would be delayed until July
10, 1982, and instead transferring them in March. The Authority agrees
with the Judge's conclusions, noting also the absence of exceptions
thereto. Thus, a refusal to bargain based upon the assertion of
nonnegotiability constitutes a violation of section 7116(a)(1) and (5)
of the Statute where, as here, the Authority has previously determined
that essentially identical proposals are negotiable. /2/ Similarly, the
Respondent's assertion of nonnegotiability as the basis for revoking its
previous agreement with the Union to delay the transfer of employees to
new positions for several months and its transfer of those employees in
repudiation of such agreement also violated section 7116(a)(1) and (5).
/3/
As a remedy, the Judge recommended that the Respondent be ordered to
cease and desist from the unfair labor practices found, to bargain
concerning the impact and implementation of its decisions, and to post a
Notice to its employees. The Judge further noted that the General
Counsel had not sought a status quo ante remedy, and stated that such a
remedy would not be appropriate herein. The Union excepts to the
Judge's failure to recommend a status quo ante remedy, arguing that such
a remedy is appropriate, based upon a consideration of the factors for
determining the appropriateness of such a remedy enunciated by the
Authority in Federal Correctional Institution, 8 FLRA 604 (1982).
The Authority agrees with the Judge's conclusion that a status quo
ante remedy is not warranted. In this regard, it is noted that the
Respondent gave the Union prior notice of its decision to reduce the
career ladder and to transfer unit employees, that the Union was
afforded the opportunity to request bargaining, and that the parties met
in an effort to resolve their concerns. It is further noted that, at
such meetings, the Respondent pointed out to the Union that there was
not sufficient work available in the Input Perfection Branch to justify
promoting employees to the GS-5 level, nor enough work to justify
keeping employees in the position of Tax Examiner in the Receipt and
Control Branch. The only bad faith conduct found by the Judge was with
regard to the more immediate transfer of the Tax Examiners in the face
of an agreement with the Union to postpone their transfer until July 10,
1982. Nevertheless, the Authority notes that the Respondent's operation
would be significantly disrupted by an order requiring the re-transfer
of employees to their previous positions despite the absence of
sufficient work for them to perform and the reestablishment of a career
ladder mandating their non-competitive promotion to the GS-5 level under
the foregoing circumstances. Thus, balancing the nature and
circumstances of the violation found against the degree of disruption in
government operations that would be caused by the granting of a status
quo ante remedy, and applying the various factors set forth in Federal
Correctional Institution, the Authority concludes that an order
requiring the Respondent to bargain on the proposal submitted by the
Charging Party and to give the Charging Party an opportunity to present
proposals concerning the impact and implementation of the Respondent's
decisions will adequately remedy the violation in this case and will
best decisions will adequately remedy the violation in this case and
will best
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Department of Treasury, Internal Revenue
Service, Memphis Service Center, shall:
1. Cease and desist from:
(a) Eliminating the career ladder position and the GS-5 grade level
for employees in the Input Perfection Branch (Math Error Section),
without affording the National Treasury Employees Union, the exclusive
bargaining representative of the Respondent's employees the opportunity
to negotiate, upon request, concerning the impact and implementation
thereof, including a proposal for the granting of "first" consideration
to adversely affected employees in the event that the career ladder is
reestablished and vacancies for the position(s) are to be filled.
(b) Assigning or transferring employees in the Receipt and Control
Branch from the position of Tax Examiner to Cash Clerk, without
affording the National Treasury Employees Union, the exclusive
bargaining representative of the Respondent's employees, the opportunity
to negotiate, upon request, concerning the impact and implementation of
such assignment or transfer on employees adversely affected, including
the date when such assignment or transfer will become effective.
(c) 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 actions in order to effectuate the
purposes and policies of the Statute:
(a) Notify the National Treasury Employees Union, the exclusive
bargaining representative of the Respondent's employees, of any proposed
elimination of the career ladder position and the GS-5 grade level for
employees in the Input Perfection Branch (Math Error Section) and, upon
request, bargain with the National Treasury Employees Union concerning
the impact and implementation thereof, including a proposal for the
granting of "first" consideration to adversely affected employees in the
event that the career ladder is reestablished and vacancies for the
position(s) are to be filled.
(b) Notify the National Treasury Employees Union, the exclusive
bargaining representative of the Respondent's employees, of any proposed
assignment or transfer of employees in the Receipt and Control Branch
from the position of Tax Examiner to Cash Clerk and, upon request,
bargain with the National Treasury Employees Union concerning the impact
and implementation of such assignment or transfer on employees adversely
affected, including the date when such assignment or transfer will
become effective.
(c) Post at its facility at the Internal Revenue Service, Memphis
Service Center, Memphis, Tennessee, 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 Director, or his
designee, and shall be posted and maintained for 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.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IV, 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., August 30, 1984
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 eliminate the career ladder position and the GS-5 level
for employees in the Input Perfection Branch (Math Error Section),
without affording the National Treasury Employees Union, the exclusive
bargaining representative of our employees, the opportunity to
negotiate, upon request, concerning the impact and implementation
thereof, including a proposal for the granting of "first" consideration
to adversely affected employees in the event that the career ladder is
reestablished and vacancies for the position(s) are to be filled.
WE WILL NOT assign or transfer employees in the Receipt and Control
Branch from the position of Tax Examiners to Cash Clerk, without
affording the National Treasury Employees Union, the exclusive
bargaining representative of our employees, the opportunity to
negotiate, upon request, concerning the impact and implementation of
such assignment or transfer on employees adversely affected, including
the date when such assignment or transfer will become effective.
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 notify the National Treasury Employees Union, the exclusive
bargaining representative of our employees, of any proposed elimination
of the career ladder position and the GS-5 level for employees in the
Input Perfection Branch (Math Error Section) and, upon request, bargain
with the National Employees Union concerning the impact and
implementation of such elimination thereof, including a proposal for the
granting of "first" consideration to adversely affected employees in the
event that the career ladder is reestablished and vacancies for the
position(s) are to be filled.
WE WILL notify the National Treasury Employees Union, the exclusive
bargaining representative of our employees of any proposed assignment or
transfer of employees in the Receipt and Control Branch from the
position of Tax Examiner to Cash Clerk and, upon request, bargain with
National Treasury Employees Union concerning the impact and
implementation of such assignment or transfer on employees adversely
affected, including the date when such assignment or transfer will
become effective.
(Activity)
By: (Signature) (Title)
Dated: . . .
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 IV, Federal Labor Relations Authority, whose address
is: 1776 Peachtree Street, N.W., Suite 501 - North Wing, Atlanta,
Georgia 30309 and whose telephone number is (404) 881-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Henry G. Mason, Esq.
For the Respondent
Barbara S. Liggett, Esq.
For the General Counsel
Steven P. Flig, Esq.
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to an Amended Complaint and Notice of Hearing issued on
August 4, 1982, by the Regional Director for the Federal Labor Relations
Authority, Atlanta, Georgia Region, a hearing was held before the
undersigned on August 24, 1982 at Memphis, Tennessee.
This is a proceeding under the Federal Service Labor-Management
Relations Statute (herein called the Statute). It is based on a first
amended charge filed on July 26, 1982 by the National Treasury Employees
Union (herein called the Union), against Department of the Treasury,
Internal Revenue Service, Memphis Service Center (herein called
Respondent).
The Complaint, as amended at the hearing, alleged in substance that
(a) on or about November 5, 1981 Respondent notified the Union of its
intention to discontinue the highest General Schedule (GS) grade in the
career ladder for a position in the Input Perfection Branch (Error
Section), and of its intention to transfer seven employees who were GS-3
Tax Examiners in the unidentified unit to the position of Cash Clerk;
(b) thereafter on November 17, 1981 the Union proposed, in respect to
such intended changes, that if management decided to reestablish the
career ladder at GS-5 level in Input Perfection, employees removed from
the ladder and stopped at GS-4 level should receive priority /4/
consideration for any vacancies prior to posting a vacancy announcement;
(c) that on or about January 21, 1982 Respondent refused to negotiate
with the Union re such proposal; that on or about January 7, 1982
Respondent agreed with the Union that employees in the unidentified unit
whom it intended to transfer (as set forth in (a) above) would not be
transferred from Tax Examiner positions to Cash Clerk positions until
July 10, 1982; (d) that notwithstanding said agreement, Respondent
transferred said employees on or about February 1982 without notice to
the Union - all in violation of Section 7116(a)(1) and (5) of the
Statute.
Respondent filed its answer dated August 9, 1982 wherein it admitted
notifying the Union of its intention to discontinue the career ladder
for the particular position in the Input Perfection Branch, as well as
its intention to transfer seven employees (Tax Examiners) in the
unidentified Unit in Receipt and Control to the position of Cash Clerks.
It also admitted that the Union proposed "priority", and then "first",
consideration for employees removed from the career ladder if the career
ladder of GS-5 is reestablished prior to posting a vacancy announcement.
Respondent denied a refusal to negotiate with the Union re its proposal
re "priority" or "first" consideration. It also denied that it agreed
not to transfer employees from Tax Examiner positions to Cash Clerk
positions in the Receipt and Control Branch. Further, Respondent denied
violating the Statute as alleged.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the Union has been and still is, the
collective bargaining representative of all professional and
non-professional employees of the Respondent, excluding management
officials, supervisors, confidential employees, and certain specified
classifications.
2. Both Union and Respondent are parties to a collective bargaining
agreement which, by its terms, is effective from January 26, 1981 until
January 26, 1985.
3. On November 5, 1981 Katy Brown, president of the Union, met with
David Grisham, Respondent's labor relations technician. Grisham
informed the Union official that management intended to make two
changes: (a) the transfer of 7 employees in an unidentified unit, who
were attached to the Receipt and Control Branch and classified as GS-3,
to the position of Cash Clerk (GS-3). The 7 employees in Receipt and
Control (R&C), were on a career ladder to a GS-4; (b) an elimination of
the top grade (GS-5) in the career ladder for 23 employees in the Math
Error Section of the Input Perfection Branch (IP). Said employees, who
were classified as GS-4, were in a career ladder position which enabled
them to become a GS-5 without competition. The new proposal would
terminate their level at GS-4, and a GS-5 could not be attained without
competition. The duty station of these employees would remain the same.
4. The proposed transfer of the seven individuals in Receipt and
Control was occasioned by a reduction in the work thereat; the
elimination of the GS-5 level in Input and Perfection resulted from
insufficient work at that grade to permit all employees in the Math
Error Section to remain thereat. /5/
5. By letter dated November 17, 1981 Union President Katy Brown
advised Grisham that the Union desired to negotiate the impact and
implementation of the two proposed changes. The Union also proposed
that: (a) if management re-established the GS-5 career ladder in Input
Perfection, employees taken from the ladder and stopped at GS-4 level
should receive priority consideration for any vacancies prior to posting
a vacancy announcement; (b) employees in Receipt and Control should
receive priority consideration for all vacancies in the unidentified
unit prior to posting a vacancy announcement; (c) employees in both
branches should receive continuous priority consideration for their old
positions until the affected employees are afforded the opportunity to
be reassigned to their previous positions.
6. The parties met on several occasions in December 1981. They
discussed the proposed changes generally, and Grisham told Brown that
Respondent deemed the "priority" consideration, as suggested by the
Union, was improper - that it was illegal and contrary to FPM and IRM
regulations. At the December 16, 1981 meeting the parties agreed to
submit final offers to each other in writing by January 6, 1982.
7. By letter dated January 6, 1982 /6/ Brown notified Billy
Lunsford, Chief Labor Relations for Respondent, that, in order to
resolve the conflict, the Union offered to change the term "priority"
consideration to "first" consideration.
8. Various representatives of both parties, including Brown,
Grisham, and Lunsford, met on January 7 and discussed the proposed
changes. Brown and the Union representatives expressed concerns to
management that it was unfair to require employees, who would be
transferred, to recompete for positions previously held. The Union
agents suggested to Respondent that the 23 employees in Input Perfection
and 7 in Receipt and Control should be considered before management
"went outside or used any other means to fill the vacancies." Lunsford's
testimony reflects, and I find, that no obligation was imposed, under
the Union proposal, to select any one of these individuals or put him
back on the job.
Lunsford stated he saw no difference between granting "priority" or
"first" consideration since it involved putting employees back in a job
without competition. He told the Union representatives it was illegal
to select someone on that basis and that Respondent deemed the proposed
nonnegotiable. /4/ Management offered to delay until July 10, 1982
before reassigning the Receipt and Control employees. Lunsford
explained that perhaps the workload might increase and the transfers
might not be required. Brown accepted the offer re delaying the
reassignments until July 10.
9. In regard to the final understanding between the parties re the
deferment of the transfer of R&C employees until July, there is a
conflict of testimony. Grisham testified that management advised Brown
at the January 7 meeting that since no agreement was reached on the
"first" consideration issue involving IP employees, the agreement to
defer the transfer was not binding on Respondent. He stated that the
parties always, as a past practice, negotiated several issues on a
"package" basis. Accordingly, Grisham testified, the offer to defer the
transfers was withdrawn.
Contrariwise, Brown testified management did not state at the meeting
that it would not agree to the deferment because of the failure to
resolve the dispute re the IP career ladder employees; and she insisted
Respondent did not withdraw its proposal at the meeting on January 7.
Neither Lunsford nor Eaton testified that management expressly
declared the proposed transfer of R&C employees was part of the whole
package. Lunsford testified that since there was no resolution of the
IP problem, management indicated it might consider going ahead with the
changes; that he didn't remember ending the meeting with a commitment
not to implement the transfers till July. Eaton testified she thought
it was understood the transfers were part of the whole package, but she
did not recall if it was expressed to the Union.
The foregoing convinces me, and I find, that the Respondent did not
clearly manifest to the Union on January 7 that the agreement to defer
the transfer of the seven R&C employees was contingent upon an agreement
with respect to the "first" consideration issue. Further, I credit
Brown in this respect and find management did not revoke on January 7
its agreement to hold the transfers in abeyance until July 10.
10. In a letter dated January 11 Union agent Brown notified Lunsford
that since the parties could not reach an agreement, the Union would
seek a mediator to resolve the dispute and also invoke the services of
the Federal Service Impasse Panel.
11. At Respondent's request, Brown met with Henry H. Philcox, the
employer's assistant director, on January 14 and Philcox told the Union
President that he needed more time to consider the matter. Brown agreed
to a week's delay so that the assistant director could review the file.
The parties met on January 20 at which time Philcox informed the Union
that Brown's proposals, and the issues, were nonnegotiable; that no
legal options were open to Respondent, and Respondent could not give the
employees priority consideration.
12. In a letter dated January 22, Brown requested that Philcox set
forth in writing specifically which issues he considered were not
bargainable by the Respondent, and that the reason be stated by the
employer.
13. In an undated letter, which was received by Brown on January 28,
Philcox advised the Union agent that Respondent deemed the priority
consideration, proposed by Brown, not to afford management a legal
option and was thus deemed nonnegotiable. Further, Philcox stated
therein that Respondent would implement its decision to reassign the
Input Perfection as well as Receipt and Control employees; that there
must be sufficient work at full performance to continue the ladders, and
therefore Respondent would make the reassignment and discontinue the
ladders.
14. On March 21 the reassignments were made by Respondent of 7
employees attached to Receipt and Control as well as 23 employees in the
Input Perfection Branch. /8/
15. Brown attended a meeting on June 8 which management called for
R&C employees. Respondent informed them of a potential reorganization
which would become effective in October 1982. At the close of the
meeting Union agent Brown asked how the new reorganization would affect
the seven employees who were to be transferred and employed as cashier
clerks. The management officials, Carol Stewart and Jim Sheeley,
replied that the transfers had been effected in February upon the
instructions of Grisham.
Conclusions
Both the General Counsel and the Charging Party contend that
Respondent violated Section 7116(a)(1) and (5) in the following
respects: (1) by refusing to negotiate concerning the Union's proposal
that "first" consideration for vacancies be given to employees in the
Input Perfection Branch, adversely affected by Respondent's abolishment
of the career ladder position to a GS-5, in the event the same career
position be reestablished; /9/ (2) by breaching an agreement, made on
January 7, 1982, to delay until July 10, 1982 the transfer of the seven
Tax Examiners in the Receipt and Control Branch to Cash Clerks - and
thereby failing to bargain in good faith in respect to the said
transfers.
Respondent insists that the Union's proposal re the granting of
"first" consideration to the 23 Input Perfection employees, in respect
to vacancies if the career ladder should be reestablished, is not
negotiable. It contends that the Union was, in fact, seeking "priority"
consideration for these employees; that "priority" consideration, under
the Federal Personnel Manual (335. A-3c), as well as the Internal
Revenue Manual (0335.251), applies to instances where competitive
procedures are suspended to correct an injustice due to a violation of
merit promotion procedures. Since the instant matter just involved the
discontinuance of the career ladder, it did not fall within the confines
of a situation justifying "priority" consideration - and to do so would
run counter to the rules and regulations.
The employer argues further that the competitive promotion plan
applies to filling positions, by promotion or reassignment, to a
position with promotion potential beyond that of the employee's current
positions (Internal Revenue Manual 0335.221 (1)(c)); that the contract
between the parties requires competition to obtain a career ladder job.
It is contended that competitive procedures must be followed to promote
or reassign the affected employees back to any reestablished career
ladder position; that the Union is attempting to eliminate these
procedures. Thus, Respondent maintains, the proposal infringes upon its
reserved right to make selections, when filling vacancies, among
properly ranked and certified candidates or any appropriate service -
all as sanctioned by Section 7106(a)(2)(C) of the Statute.
In respect to the alleged agreement not to transfer the seven R&C
employees till July 10, Respondent avers that there was no such binding
agreement consummated. It insists that the offer to defer the transfer
was withdrawn at the January 7 meeting since the Union continued to
press for "priority" consideration; that binding agreements between the
parties are never reached on a piecemeal basis, and since they could not
agree re the "first" consideration issue, the employer withdrew its
unilateral offer to defer the transfers of these employees.
Presented for determination herein are these primary issues: (1)
whether the proposal by the Union re "first" consideration for the 23
Input Perfection employees, in respect to vacancies occurring if the
career ladder position is reestablished, is negotiable so as to require
Respondent to bargain thereon; (2) whether Respondent's revocation of
an agreement, made at the January 7 meeting, to defer transferring 7
employees in the Receipt and Control Branch until July 10 is reflective
of bad faith bargaining in this regard at the said meeting.
(1) It is not denied that an employee in the public sector has
complete authority under the Statute in regard to filling positions in
accordance with applicable law. Thus, Section 7106(a)(2)(C) of the
Statute provides as follows:
7106. Management Rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency -
(2) in accordance with applicable laws -
(C) with respect to filling positions, to make selections for
appointment from -
(i) among properly ranked and certified candidates for
promotion; or
(ii) any other appropriate service
A careful review of the entire record herein convinces me that the
Union proposal re "first" consideration for the 23 Input Perfection
employees, in the event of a reestablished career ladder for this
position, was not an infringement of the foregoing management rights
provisions. Contrary to Respondent's contention, I do not agree that
the Union's proposal in this regard was bottomed upon "priority"
consideration for those employees. In her letter of January 6, and
during the meeting on January 7, Brown announced to management that the
Union sought first consideration for them. The said letter explicitly
renounced "priority" consideration. Moreover, the Union officials
explained at the said meeting that the proposal involved considering
those employees, whose career ladder was abolished, before management
went outside or used other means to fill vacancies if the career ladder
was reinstituted.
In American Federation of Government Employees, AFL-CIO, Local 1884
and Defense Mapping Agency, Hydrographic Topographic Center, Providence,
Rhode Island, 4 FLRA No. 33 the Union proposed to management, inter
alia, that "Consideration in filling vacant positions will be given
first to employees within the Providence Office, the minimum area of
consideration and to voluntary applicant within DMA" (underscoring
supplied). The Authority held that this proposal was within the
agency's duty to bargain under Section 7106(b)(2), /10/ and that it did
not violate Section 7106(a)(2)(C) of the Statute. It concluded that
this proposal was akin to that presented to the Authority in American
Federation of Government Employees, AFL-CIO, Local 331 and Veterans
Administration Hospital, Perry Point, Maryland, 2 FLRA No. 59. In that
case the Authority determined that a union proposal requiring
consideration in filling vacant positions first be given to bargaining
unit employees was within the duty to bargain under the Statute.
In determining whether a proposal of this nature infringes upon
management's rights, the Authority has been concerned whether the
agency's right of selection is abridged by virtue thereof. Thus, in
National Treasury Employees Union - U.S. Customs Service, Region IX, 2
FLRA No. 8 (1979), the Authority was confronted with this issue when the
union proposed, inter alia, as follows:
"Article 16, Section 3:
A. The employer agrees that when an employer has been
reassigned due to the abolishment of his/her position, he/she will
be considered first if that position is reestablished within one
(1) year and he/she applies in thus fifteen (15) days after
written notification is given to the employee of its
reestablishment" (underscoring supplied).
The Office of Personnel Management (OPM) contended that since this
clause would require consideration of such employees prior to others who
have a statutory, regulatory or FPM granted right to be considered, it
conflict with mandatory civil service regulations. The Authority
concluded the proposal did not supersede or limit consideration of
others who were entitled to priority or special consideration under
civil service laws or regulations; and that the proposal neither
limited consideration to former incumbents of the reestablished position
nor restricted the agency from exercising its right to select from any
appropriate service. Likewise, in the case at bar, the Union's proposal
that Respondent consider the 23 Input and Perfection employees first if
the career ladder is reestablished was not intended to, and does not,
limit management's consideration of those entitled to priority or
special consideration. Neither does the clause restrict Respondent's
right to select from any appropriate source in filling vacancies. /11/
Accordingly, I conclude the Union's proposal herein requiring Respondent
to accord "first" consideration for vacancies to the 23 Input Perfection
employees whose career ladder was terminated, in the event of a
reestablishment of the position, was negotiable. Further, a refusal to
bargain thereon was, on the part of Respondent, violative of Section
7116(a)(1) and (5) of the Statute.
(2) The obligation to negotiate in good faith re conditions of
employment is delineated under Sections 7103(a)(12) and 7114(b) of the
Statute. While not quarreling with the obligation so imposed upon it,
Respondent resists any imputation of bad faith bargaining on its part
concerning the transfer of the 7 employees in the R&C Branch to Cash
Clerks. It takes the position that any agreement which it made to defer
the transfer to July 10 was properly revoked at the end of the January 7
meeting with the Union. The basis for its revocation, Respondent
declares, was the failure of the parties to agree on the Union's
proposal re the 23 Input Perfection employees. It is asserted that the
negotiations on January 7 were undertaken on a "package" basis, i.e. no
agreement would be valid unless both proposals or issues were resolved.
Since the Respondent would not agree to "first" consideration for the IP
employees, the employer contends it properly withdrew the offer to defer
the transfer of the R&C employees.
Whether good faith bargaining has taken place during negotiation
sessions must necessarily be based on the total context of what has
occurred between parties during the course of their proposals and
counterproposals. Further, while evidence of bad faith bargaining may
be found in withdrawal of a tentative or previous agreement, such action
does not necessarily establish per se an absence of good faith. See and
compare Division of Military and Naval Affairs, State of New York,
Albany, New York 7 FLRA No. 51.
Upon reviewing the evidence in respect to this particular issue. I
am persuaded that Respondent did not negotiate in good faith as to the
implementation of the transfer of the 7 R&C employees. As heretofore
found, management did not explicitly declare to Brown that the agreement
to defer the transfer till July 10 was conditioned upon resolving the
"first" consideration issue involving the 23 IP employees. Further, in
accordance with my finding in this regard, management did not withdraw
its proposal at the January 7 meeting by so advising the Union
representative. While it did so in the letter received on January 28 by
Brown, this action negated its prior commitment. Moreover, this letter
lends support for the conclusion that Respondent had not revoked its
proposal prior thereto. Since the Union was foreclosed from bargaining
on the matter after the parties had agreed to the deferment, I conclude
that the employer displayed bad faith in failing to adhere to its
agreement and labeling the matter as nonnegotiable. Although Respondent
was privileged to transfer or reassign its employees as an inherent
management right, it was obligated to bargain re the impact and
implementation thereof. I conclude it failed to do so in violation of
Section 7116(a)(1) and (5) of the Statute. Federal Prison System,
Correctional Institution, Petersburg, Virginia, 8 FLRA No. 111.
Having found that Respondent violated Section 7116(a)(1) and (5) of
the Statute, I recommend the Authority adopt the following Order:
ORDER /12/
Pursuant to Section 7118(a)(7) of the Federal Service
Labor-Management Relations Statute and Section 2423.29 of the Rules and
Regulations, the Authority hereby orders that the Department of
Treasury, Internal Revenue Service, Memphis Service Center, shall:
1. Cease and desist from:
(a) Eliminating the career ladder position and the GS-5 grade
level for employees in the Input Perfection Branch (Math Error
Section), without first notifying the National Treasury Employees
Union, the exclusive bargaining representative, and affording it
the opportunity to negotiate, upon request, concerning the
granting of "first" consideration to said employees in the event
the career ladder is reestablished and vacancies for the position
will be filled, and concerning both the procedures which
management will observe in implementing such elimination of the
career ladder position as well as appropriate arrangements for
those employees adversely affected.
(b) Assigning or transferring employees in the Receipt and
Control Branch from the position of Tax Examiner to Cash Clerk,
without first notifying the National Treasury Employees Union, the
exclusive bargaining representative, and affording it the
opportunity to negotiate, upon request concerning the date when
such assignment or transfer will become effective, and concerning
both the procedures which management will observe in implementing
such assignment or transfer as well as appropriate arrangements
for employees adversely affected.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Notify the National Treasury Employees Union, the exclusive
bargaining representative of any proposed elimination of the
career ladder position and the GS-5 grade level for employees in
the Input Perfection Branch (Math Error Section), and, upon
request, bargain with the National Treasury Employees Union
concerning the granting of "first" consideration to such employees
for the filling of vacancies if the career ladder for the position
is reestablished and the GS-5 level is reinstituted, and
concerning both the procedures which management will observe in
implementing such elimination as well as appropriate arrangements
for employees adversely affected.
(b) Notify the National Treasury Employees Union the exclusive
bargaining representative of any proposed assignment or transfer
of employees in the Receipt and Control Branch from the position
of Tax Examiner to Cash Clerk, and, upon request, bargain with the
National Treasury Employees Union concerning the date when such
assignment or transfer will become effective, and concerning both
the procedures which management will observe in implementing such
assignment or transfer as well as appropriate arrangements for
employees adversely affected.
(c) Post at its facility at the Internal Revenue Service,
Memphis Service Center, Memphis, Tennessee, 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
Director and shall be posted and maintained by him for 60
consecutive days thereafter in conspicuous places, including all
bulletin boards and other places there notices to employees are
customarily posted. The Director shall take reasonable steps to
insure that such notices are not altered, defaced, or covered by
any other material.
(d) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IV, in writing,
within 30 days from the date of this Order, as to what steps have
been taken to comply herewith.
WILLIAM NAIMARK
Administrative Law Judge
Dated: January 28, 1983
Washington, DC
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 eliminate the career ladder position and the GS-5 grade
level for employees in the Input Perfection Branch (Math Error Section),
without first notifying the National Treasury Employees Union, the
exclusive bargaining representative, and affording it the opportunity to
negotiate, upon request, concerning the granting of "first"
consideration to said employees in the event the career ladder is
reestablished and vacancies for the position will be filled, and
concerning both the procedures which management will observe in
implementing such elimination of the career ladder positions as well as
appropriate arrangements for those employees adversely affected.
WE WILL NOT assign or transfer employees in the Receipt and Control
Branch from the position of Tax Examiners to Cash Clerk, without first
notifying the National Treasury Employees Union, the exclusive
bargaining representative, and affording it the opportunity to
negotiate, upon request, concerning the date when such assignment or
transfer will become effective, and concerning both the procedures which
management will observe in implementing such assignment or transfer, as
well as appropriate arrangements for employees adversely affected
thereby.
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 notify the National Treasury Employees Union, the exclusive
bargaining representative, of any proposed elimination of the career
ladder position and the GS-5 grade level for employees in the Input
Perfection Branch (Math Error Section), and, upon request, bargain with
the National Treasury Employees Union concerning the granting of "first"
consideration to such employees for the filling of vacancies if the
career ladder for the position is reestablished and the GS-5 level is
reinstituted, and concerning both the procedures which management will
observe in implementing such elimination as well as appropriate
arrangements for employees adversely affected.
WE WILL notify the National Treasury Employees Union, the exclusive
bargaining representative, of any proposed assignment or transfer of
employees in the Receipt and Control Branch from the position of Tax
Examiner to Cash Clerk, and, upon request, bargain with National
Treasury Employees Union concerning the date when such assignment or
transfer will become effective, and concerning both the procedures which
management will observe in implementing such assignment or transfer as
well as appropriate arrangements for employees adversely affected.
(Agency or Activity)
By: (Signature)
Dated: . . .
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 4, Federal Labor Relations Authority, 1776 Peachtree
Street, NW., Suite 501 - North Wing, Atlanta, Georgia 30309 and whose
telephone number is (404) 881-2324.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) provides:
Sec. 7116. Unfair labor practices
For the purpose of this chapter, it shall be an unfair labor
practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/2/ See Department of the Air Force, U.S. Air Force Academy, 6 FLRA
548 (1981), aff'd, 717 F.2d 1314 (10th Cir. 1983). See also Veterans
Administration, Veterans Administration Regional Office (Buffalo, New
York), 10 FLRA 167 (1982).
/3/ Id. See also Great Lakes Service Center, Social Security
Administration, Department of Health and Human Services, Chicago,
Illinois, 9 FLRA 499 (1982), and cases cited therein.
/4/ It is also alleged that the Union, on January 6, 1982, amended
its proposal by substituting the word "first" for the word "priority".
/5/ More than 23 people were attached to this section in the Input
Perfection Branch, but the career ladder would stop at GS-4 for these 23
employees. The latter individuals would also be required to recompete
in order to return to the career ladder.
/6/ Unless otherwise indicated, all dates hereinafter mentioned
occurred in 1982.
/7/ Neither party sought to introduce at the hearing a copy of the
collective bargaining agreement, and none was available thereat.
However, the parties agreed that the contract speaks of priority
consideration where someone has not received proper consideration for a
promotion and the priority consideration is used to remedy that
situation. Respondent insisted that contractual provision precludes
granting first consideration, as proposed by the Union, and the latter
disagreed.
/8/ The Input Perfection employees were technically transferred as a
result of a new position description, although they remained in the same
job. The position description for the R&C Tax Examiners did not change,
but the Respondent did remove the GS-5 step from that position. The
seven R&C examiners attached to R&C, however, were reassigned as
cashier's clerks.
/9/ The brief of the General Counsel argues that the refusal by
Respondent to negotiate this proposal - "first" consideration - in
regard to employees in the Receipt and Control branch is also violative
of the Act. It is noted that the Charging Party's brief comments that
the proposal is apparently no longer the subject of any dispute herein.
Since the complaint alleges only a refusal to negotiate concerning
"first" consideration for employees adversely affected who are in the
Input Perfection branch, conclusions by the undersigned as to this issue
will be confined to the 23 employees in the Math Error Section of this
latter branch.
/10/ This particular statutory language provides, under "Management
rights," that "nothing in this section shall preclude any agency and any
labor organization from negotiating-- procedures which management
officials of the agency will observe in exercising any authority under
this section."
/11/ It is also asserted by Respondent that any reassignment of these
employees is subject to the merit promotion procedures, and that the
negotiated agreement require competition to get a career ladder job.
Thus, it argues, the proposal is contrary to the plan and that promotion
procedures must be followed. Under Section 7106(a)(2)(C) management has
the right, in filling positions to select from "among properly ranked
and certified candidates for promotion or any other appropriate
service." Irrespective of whether a reestablishment of the career ladder
herein is viewed as a reassignment or promotion. I am constrained to
conclude these employees have already competed to obtain a career ladder
position. No recompeting should be required before Respondent may grant
"first" consideration to them, and I conclude such consideration does
not violate government-wide regulations. See FPM Chapter 335.5
subchapter 1-5b. dealing with applicability of competition procedures.
/12/ Note is taken that, at the hearing, General Counsel stated that
a status quo remedy was not sought herein. The undersigned agrees that
such a remedy would not be appropriate, and accordingly no provision is
made for that relief.