[ v19 p401 ]
19:0401(55)CA
The decision of the Authority follows:
19 FLRA No. 55
INTERNAL REVENUE SERVICE
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-20489
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that Internal Revenue Service (the
Respondent) had engaged in the unfair labor practices alleged in the
complaint and recommending that it be ordered to cease and desist
therefrom and take certain affirmative action. Thereafter, the
Respondent filed exceptions to the Judge's Decision and a supporting
brief.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations only to the extent
consistent herewith.
The Judge found that the Internal Revenue Service (the Respondent)
violated section 7116(a)(1) and (5) of the Statute by refusing to
negotiate concerning proposals submitted by the National Treasury
Employees Union (the Union) during the term of an existing collective
bargaining agreement even though such proposals were not related to any
changes initiated by the Respondent. The Judge concluded that the duty
to bargain in good faith imposed upon agencies by the Statute includes
the requirement to bargain over proposals initiated by a union during
the term of an existing collective bargaining agreement concerning
subjects not specifically waived by the union during negotiations or
included in the existing agreement. The Authority does not agree.
Subsequent to the Judge's Decision in the instant case, the Authority
issued its Decision and Order in Internal Revenue Service, 17 FLRA No.
103 (1985), petition for review filed sub nom. National Treasury
Employees Union v. FLRA, No. 85-1361 (D.C. Cir. June 14, 1985), in which
it found that agencies have no obligation under the Statute to bargain
over proposals initiated by a union during the term of an agreement
which are unrelated to management-initiated changes in conditions of
employment. /1/ In so finding, however, the Authority further noted,
inter alia, that "where parties have negotiated a reopener provision in
their agreement, timely negotiable proposals submitted in connection and
consistent therewith are subject to the mutual obligation to bargain."
In the instant case, during negotiations between the Union and the
Respondent for a collective bargaining agreement, the Union submitted
two proposals concerning continuing legal education for certain unit
employees. The Respondent declared both proposals nonnegotiable, and
the Union filed a negotiability appeal with the Authority. When the
services of the Federal Mediation and Conciliation Service were invoked,
the Union withdrew the two proposals, and the parties later executed a
collective bargaining agreement which contained no reference to
continuing legal education. However, the agreement contained a
provision which read: "Proposals declared nonnegotiable and
subsequently found negotiable by the . . . Authority will be timely
negotiated by the parties after the finding."
Subsequently, during the term of the parties' agreement, the
Authority issued its decision on the negotiability issue noted above,
finding that the proposals were nonnegotiable as drafted, but indicating
how they might be revised to be made compatible with existing law and
thus rendered negotiable. National Treasury Employees Union and
Department of the Treasury, Internal Revenue Service, 6 FLRA 508 (1981).
The Union sought to bargain concerning the two proposals and the
Respondent refused, contending that it had no duty to bargain mid-term
in the circumstances presented. As noted above, the Authority has since
held that an agency is not obligated to bargain concerning
union-initiated mid-term bargaining proposals which are unrelated to
changes in conditions of employment initiated by management. Therefore,
unless the parties' reopener provision is applicable, the Respondent's
refusal to bargain herein did not constitute a violation of the Statute.
The collective bargaining agreement involved herein clearly provides
for reopening negotiations and for the parties to bargain in the event
that the Authority determines proposals to be negotiable upon appeal.
However, that circumstance did not occur herein, for the proposals
submitted by the Union during negotiations and declared nonnegotiable by
the Respondent were found to be nonnegotiable by the Authority on appeal
and the Respondent therefore was under no obligation to bargain. /2/
Accordingly, the instant complaint must be dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-20489 be, and it
hereby is, dismissed.
Issued, Washington, D.C., July 31, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 3-CA-20489
Ramona Hall, Esquire
William L. Bransford, Esquire
For the Respondent
Mr. Frank D. Ferris
Mr. Jeffrey H. Gelman
For the Charging Party
Sharon Prost, Esquire
Bruce D. Rosenstein, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region Three, Federal Labor Relations Authority,
Washington, D.C. against the Internal Revenue Service (Respondent),
based on a charge filed by the National Treasury Employees Union
(Charging Party, NTEU, or Union). The complaint alleged, in substance,
that Respondent violated sections 7116(a)(1) and (5) of the Federal
Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the
Statute), on March 22, 1982 by refusing to negotiate in good faith with
the Union concerning two proposals submitted on March 10, 1982. The
proposals concerned reimbursement of costs and administrative leave for
certain continuing legal education classes required of attorneys by
state bars.
Respondent contends that it has no obligation to negotiate over
mid-term proposals initiated by NTEU that do not directly relate to
management-initiated changes in conditions of employment. Assuming such
an obligation, Respondent maintains that this duty does not extend to
subjects which were discussed during term negotiations.
A hearing was held in Washington, D.C. The Respondent, Charging
Party, and the General Counsel were each represented and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. Based on the
entire record, including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of law, and
recommendations.
Findings of Fact
At all times material herein, Respondent has recognized the Union as
the exclusive collective bargaining representative of appropriate units
of Respondent's professional and non-professional District, Regional,
and National Office employees. (General Counsel's Ex. 1(e), 1(g).
Negotiations between the Union and Respondent for a collective
bargaining agreement covering these employees began in 1979. (Tr.
16-17.)
During the course of these negotiations, on April 25, 1979, the Union
submitted several proposals including two relating to the training and
administrative leave contract articles. The first sought agency
reimbursement for all costs incurred by attorneys in attending
continuing legal education courses, when required by state law to do so
in order to continue to be licensed to practice law. The second
proposal sought to have the agency grant administrative leave to
attorneys required to attend such continuing legal education courses.
(General Counsel's Ex. 2, 3A, 3B; Tr. 17-18.)
These proposals came to the bargaining table for discussion early in
May 1979. IRS asked the Union to give a rationale for the proposals.
The Union responded that since bar membership was a condition of IRS
employment for lawyers, IRS should pay for lawyers to take the
continuing legal education required by some state bars for continued
membership in the bar. IRS refused to accede to the Union proposal.
IRS replied that employment as a lawyer was conditional on membership in
the bar, and the responsibility to meet, and continue to meet, that
condition was solely upon the employee. (Tr. 19, 49-50.) IRS formally
rejected the proposals when it failed to mention them in written
counter-proposals dealing with other matters.
The Union pursued its demand and, in subsequent discussions, on or
about May 9, 1979, the IRS declared both proposals nonnegotiable. The
Union thereafter, also in May of 1979, submitted a negotiability appeal
to the Authority which contained the above proposals. IRS was furnished
a copy of this appeal. (Tr. 19, 51-52.)
At some point during May 1979 the Union advised management that if
management would be willing to settle some outstanding grievances on the
basis of permitting attorneys to take the bar examination in two states,
instead of one state, the Union would be willing to withdraw and settle
the matter of continuing education. (Tr. 58-59.) There is no evidence
that this offer was accepted by IRS or specifically discussed further by
the parties in relation to the Union's continuing education proposals.
Contract negotiations on subjects other than continuing legal
education continued. By December 1979, with approximately 200 issues
outstanding and unresolved, face-to-face negotiations had broken down.
The assistance of a federal mediator had been requested, and the parties
were submitting proposals through him. (Tr. 20.) The parties had agreed
that in this exchange of proposals each of the parties would give
something to get something. (Tr. 56.) Responding to a request by the
mediator to narrow the number of issues outstanding, the Union formally
withdrew from the bargaining table the two proposals on continuing legal
education. The Union did so because the proposals were then pending in
a negotiability appeal before the Federal Labor Relations Authority, and
the Union did not feel the IRS could be convinced that the proposals
were in fact negotiable. (Tr. 20-21, 31, Respondent Ex. 1(a) and 1(b).)
The Federal Mediation and Conciliation Service does not handle issues
that are pending before the Authority as negotiability appeals. (Tr.
36.) /3/
IRS interpreted the withdrawal as the Union giving something to get
something. In January 1980 IRS agreed to settle outstanding grievances
by permitting attorneys to take the bar examination in two states. The
grievances were settled on this basis. There is no evidence that IRS,
in doing so, specifically related its action to the Union's earlier
offer in May 1979, or to the Union's subsequent withdrawal of the
continuing legal education proposal. (Tr. 59.)
Thereafter, negotiations continued, and the ensuing contract between
the parties became effective on January 26, 1981. (Tr. 22; Joint Ex.
2.) The contract did not include any provisions on continuing legal
education. Rather, the matter of the negotiability of the two proposals
on continuing legal education remained pending before the Federal Labor
Relations Authority through this period and until the Authority decision
in September, 1981. (Tr. 22; General Counsel's Ex. 4.) /4/
On September 4, 1981, the Authority issued its decision on the
negotiability issue, agreeing with Respondent that the continuing legal
education proposals were nonnegotiable. However, the Authority decision
noted that the proposals could be made negotiable if they were revised
to incorporate the applicable statutory limitations set forth in the
Training Act. National Treasury Employees Union and Department of the
Treasury, Internal Revenue Service, 6 FLRA No. 97 (1981). (General
Counsel's Ex. 4.)
Following its receipt of the negotiability determination referred to
above, the Union, by letter dated September 22, 1981, again requested
negotiations over the identical proposals. The Union stated that the
new contract's requirement, that both parties interpret provisions
therein consistent with any statutory provisions, satisfied the
Authority's decision and order. (Tr. 23, General Counsel's Ex. 5.) IRS
refused to negotiate. IRS noted that the Authority's finding
effectively disposed of the matter, and it was not required to negotiate
on proposals which had already been found to be nonnegotiable. (General
Counsel's Ex. 6; Tr. 67.)
The Union, in approximately January 1982, filed an unfair labor
practice charge over Respondent's refusal to bargain. This charge,
3-CA-20268, was subsequently dismissed by the Regional Director, Region
III. (General Counsel's Ex. 12, Tr. 38.) The dismissal was based on a
determination that the proposals, as submitted on September 22, 1981,
were not deemed to constitute revised proposals reflecting the legal
requirements as set forth by the Authority in 6 FLRA No. 97. (General
Counsel's Ex. 12; Tr. 39-40.)
Upon learning of the dismissal, the Union revised its proposals in an
effort to conform with the requirements set forth in 6 FLRA No. 97.
(Tr. 40.) By letter dated March 10, 1982, the Union requested
negotiations on the revised proposals. (General Counsel's Ex. 10; Tr.
40.)
By letter dated March 22, 1982, Respondent refused to bargain on the
revised proposals. In its response, Respondent did not declare the
proposals nonnegotiable. Respondent acknowledged that the proposals
submitted had been "amended to include the statutory limitations
necessary to make them negotiable on their face." Respondent based its
refusal to bargain on two grounds. It contended that the Union's
withdrawal of the proposals during contract negotiations constituted a
waiver by the Union. Furthermore, it noted that the IRS had done
nothing to open this subject up for mid-term negotiations. (General
Counsel's Ex. 11; Tr. 68-69.)
Respondent has made no changes in conditions of employment in the
subject area of the two proposals. (Tr. 33-34, 65.)
Discussion, Conclusions, and Recommendations
IRS contends that it has no obligation to bargain over mid-term
proposals submitted by NTEU that do not directly relate to
management-initiated changes in conditions of employment. In the
alternative, IRS maintains that it is under no obligation to bargain
over any subject discussed during term negotiations. IRS claims that
the proposals were fully discussed by the parties and later withdrawn by
the Union in writing in exchange for concessions made by the agency.
The General Counsel and the NTEU take the position that IRS is
obligated to bargain over mid-term proposals submitted by the Union.
The General Counsel maintains that, in any event, the proposals at issue
were, in fact, nothing more than a continuation of master contract
negotiations over an issue that had been temporarily set aside pending
the outcome of the negotiability appeal. These parties also assert that
the Union's withdrawal of the proposals during contract negotiations did
not amount to a waiver of its right to negotiate over the issue of
continuing legal education.
The Authority has held that the contention that an agency has no duty
to bargain with regard to changes in conditions of employment proposed
by a union, but only with regard to changes proposed by the agency, "is
clearly inconsistent with the definition and purpose of 'collective
bargaining' under the Statute and therefore cannot be sustained."
Library of Congress, 9 FLRA No. 51 (1982); Library of Congress, 9 FLRA
No. 52 (1982). A few weeks prior to the Authority's decisions, Judge
Burton S. Sternburg, in a case involving the same parties as the instant
case, thoroughly canvassed the issues raised by this contention and
reached the same conclusion. See Internal Revenue Service and National
Treasury Employees Union, Case No. 3-CA-20156, OALJ 82-92 (June 15,
1982), appeal pending. Judge Sternburg held that, under the Statute, an
agency is obligated to enter mid-term bargaining with respect to
proposals which were neither discussed nor encompassed in the collective
bargaining agreement. Substantially all that was said by Judge
Sternburg concerning this issue is equally applicable here, and it would
serve no purpose to enlarge this decision with a paraphrased repetition
of what was in that opinion thoughtfully considered and carefully
expressed.
I also agree with the General Counsel's position that, even assuming
arguendo that there were no obligation on Respondent to bargain over
matters during the life of the contract that did not concern
management-initiated changes, such a defense would not be applicable
herein. The proposals at issue were, in fact, nothing more than a
continuation of master contract negotiations over an issue that had been
temporarily set aside pending the outcome of the negotiability appeal.
/5/
With respect to Respondent's position that it had no obligation to
bargain over any subject "discussed" during term negotiations, the
Authority has previously held that "a waiver will be found only if it
can be shown that the exclusive representative clearly and unmistakably
waived its right to negotiate." Library of Congress, supra, 9 FLRA at
429; Department of the Air Force, Scott Air Force Base, Illinois, 5
FLRA No. 2 (1981). There is no evidence that the Union expressly waived
its rights with respect to mid-term bargaining of the proposals under
consideration here. There is also no evidence of a "zipper clause",
wherein each party agrees that the other shall not be obligated to
bargain with respect to any matter not covered by the contract for the
life of the agreement.
For a matter to be considered waived by precontract negotiations, it
must have been "fully discussed" or "consciously explored" and
"consciously yielded" or "knowingly relinquished." This conduct permits
a determination that one party clearly and unmistakably waived its
interest in the matter and/or acceded to the position of the other. Cf.
Department of the Navy, Portsmouth Naval Shipyard, 4 FLRA No. 82 (1980);
Bureau of Alcohol, Tobacco and Firearms, National Office and Central
Region, 2 FLRA No. 67 (1980); The Bunker Hill Co., 208 NLRB 27, 33,
modified 210 NLRB 373 (1974); The Beacon Journal Publishing Co., 164
NLRB 734, 65 LRRM 1126 (1967); Saint Mary's Hospital and Hotel, 260
N.L.R.B. No. 175, 109 LRRM 1343 (1982). Addressing the issue of waiver
in Internal Revenue Service and National Treasury Employees Union,
supra, Judge sternburg stated that, apart from an express waiver, a
waiver by bargaining history must be established by showing that the
"proposals were fully discussed during the negotiations . . . and that
the Union consciously and unequivocally waived its rights to future
bargaining thereon."
The mere discussion of a subject not specifically covered in the
resulting contract does not remove the matter from the realm of
collective bargaining during the contract term. The Press Co., Inc.,
121 NLRB 976 (1958), quoted with approval in Internal Revenue Service,
Case No. 3-CA-20156, supra. And the withdrawal of a contract proposal,
or failure to pursue a demand in contract negotiations, does not,
without more, constitute a waiver. See Internal Revenue Service, Case
No. 3-CA-20156, supra (citing cases).
Respondent asserts that the withdrawal of the contract proposals was
made by the Union in order to obtain a concession from Respondent
concerning the settlement of some grievances. In the early stages of
bargaining, the Union did make an offer to withdraw the proposals in
exchange for settling some grievances. However, the evidence does not
show that Respondent ever accepted this offer, communicated its
acceptance to the Union, or was acting pursuant to such a perfected
agreement with the Union when it agreed to settle the grievances some
seven months later. The settlement of the grievances could well have
stood on its own merits. There is no clear evidence of a specific trade
off with respect to the continuing legal education proposals. The
superficial agreement that each party, in presenting proposals to the
mediator, would "give up something to get something" is not sufficient
to show that the matter was fully discussed, consciously explored, and
that the Union, by withdrawing the proposals, consciously yielded its
rights to further bargaining following the determination of its
negotiability appeal.
The Union's pursuit of its negotiability appeal demonstrates
continued resistance to Respondent's position, not acquiescence.
Respondent made no effort to apprise the Authority of the withdrawal of
the proposals from the bargaining table during the approximately
twenty-two months between the withdrawal and the Authority's decision on
the negotiability appeal. This is in contrast to the action taken in
another case where Respondent informed the Authority of the execution of
an agreement covering a dispute and moved to dismiss the negotiability
appeal. It is also in contrast to the Union's action in another
instance reflected in the record where the Union requested the Authority
to withdraw an appeal. The fact that no similar action was taken with
regard to the two proposals involved here further supports the
conclusion that the parties did not consider the Union's withdrawal as a
clear and unequivocal waiver of its bargaining rights.
The record does not support the conclusion that the proposals
involved here were fully discussed during precontract negotiations and
that the Union consciously yielded its rights to further bargaining
thereon. Accordingly, it is concluded that Respondent's refusal to
bargain concerning the Union's altered proposal constitutes a violation
of section 7116(a)(1) and (5) of the Statute, as alleged in the
complaint. Internal Revenue Service, 9 FLRA No. 27 (1982).
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the Internal Revenue Service shall:
1. Cease and desist from:
(a) Refusing to negotiate in good faith with the National
Treasury Employees Union, the exclusive representative of its
employees, concerning the bargaining proposals submitted on March
10, 1982 with respect to reimbursement of costs and administrative
leave for certain continuing legal education courses.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute.
(a) Upon request of the National Treasury Employees Union, the
exclusive representative of its employees, negotiate in good faith
concerning the bargaining proposals submitted on March 10, 1982
with respect to reimbursement of costs and administrative leave
for certain continuing legal education courses.
(b) Post at its facilities copies of the attached Notice marked
"Appendix" on forms to be furnished by the Authority. Upon
receipt of such forms, they shall be signed by the Chief, Labor
Relations Branch, and shall be posted and maintained by him for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. The Chief, Labor Relations Branch shall take
reasonable steps to insure that such notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to 5 C.F.R. 2423.30 notify the Regional Director,
Region Three, Federal Labor Relations Authority, 1111 - 18th
Street, N.W., Room 700, P.O. Box 33758, Washington, D.C.
20033-0758, in writing, within 30 days from the date of this
order, as to what steps have been taken to comply herewith.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: May 25, 1983
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE We Hereby Notify Our Employees That:
WE WILL NOT refuse to negotiate in good faith with the National Treasury
Employees Union, the exclusive representative of our employees,
concerning the bargaining proposals submitted on March 10, 1982 with
respect to reimbursement of costs and administrative leave for certain
continuing legal education courses. WE WILL NOT in any like or related
manner, interfere with, restrain, or coerce employees in the exercise of
their rights assured by the Federal Service Labor-Management Relations
Statute. WE WILL, upon request of the National Treasury Employees
Union, the exclusive representative of our employees, negotiate in good
faith concerning the bargaining proposals submitted on March 10, 1982
with respect to reimbursement of costs and administrative leave for
certain continuing legal education courses.
(Agency or Activity)
Dated: . . . By: (Signature) This Notice must remain posted for 60
consecutive days from the date of posting and must not be altered,
defaced or covered by any other material. If employees have any
questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director of
the Federal Labor Relations Authority, Region Three, whose address is:
1111 - 18th Street, N.W., Room 700, P.O. Box 33758, Washington, D.C.
20033-0758, and whose telephone number is: (202) 653-8507.
--------------- FOOTNOTES$ ---------------
/1/ See also Missouri National Guard, Office of the Adjutant General,
Jefferson City, Missouri, 18 FLRA No. 44 (1985); Internal Revenue
Service (District Office Unit), Department of the Treasury, 18 FLRA No.
48 (1985).
/2/ The suggestions by the Authority as to how the proposals might be
modified so as to be rendered negotiable were merely meant to be helpful
guidance for the parties to use at such time as negotiations would
subsequently be appropriate, and clearly cannot be interpreted as a
finding that they were negotiable.
/3/ There were apparently other proposals which were declared
nonnegotiable which were not withdrawn from the table by the Union.
(Tr. 59-60.)
/4/ At no time between the Union's filing of a negotiability appeal
with the FLRA in May of 1979, and the FLRA's decision on this matter in
September 1981, including the approximately twenty-two months following
the Union's December 1979 withdrawal of the proposals from the
bargaining table, did Respondent or the Union ever file a motion or
other document with the FLRA contending that any resolution or agreement
had been reached on these proposals. (Tr. 35.) Such non-action with
respect to O-NG-71, dealing with the two proposals on continuing legal
education, is in contrast to action taken by the parties on two other
negotiability appeals. In one case, the IRS informed the Authority of
the execution of an agreement covering the dispute and moved to dismiss
the appeal. (General Counsel's Ex. 9.) In another, the Union requested
the Authority to withdraw an appeal. (General Counsel's Ex. 7.)
/5/ That the specific proposals were ultimately declared
nonnegotiable did not, in and of itself, relieve Respondent of an
obligation to bargain over proposals specifically revised to conform to
the requirements set forth in the negotiability decision. In this
regard, the Authority's decision, as noted, included specific guidance
on how the proposals could be revised to make them negotiable. See also
Internal Revenue Service, 9 FLRA No. 27 (1982), where the Authority
determined that the agency was obligated to bargain over a revised
proposal submitted by the Union following dismissal of the Union's
negotiability appeal before the Federal Labor Relations Council.