23:0063(9)CA - IRS and IRS Brooklyn District and NTEU and NTEU Chapter 53 -- 1986 FLRAdec CA
[ v23 p63 ]
23:0063(9)CA
The decision of the Authority follows:
23 FLRA No. 9 INTERNAL REVENUE SERVICE AND INTERNAL REVENUE SERVICE BROOKLYN DISTRICT Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 53 Charging Party Case No. 2-CA-50241 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached Decision of the Administrative Law Judge. The General Counsel and the Charging Party (the Union) filed oppositions to the Respondent's exceptions. The complaint in this case alleged a violation of section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to execute and implement a memorandum of understanding (the agreement) reached by representatives of the parties at a negotiating session on February 14, 1985. II. Background The Union represents Internal Revenue Service (IRS) employees who work in the Brooklyn District. The parties had entered into a settlement agreement in October 1984, in which the Respondent agreed to negotiate concerning the impact and implementation of the relocation of Group 1117 employees whose post of duty was in Mineola, Long Island. After some effort, a negotiating session was set for February 14, 1985. In prior negotiating sessions involving other matters, the Respondent took the position that its negotiators did not have final authority to bind the Respondent to an agreement and that such authority only resided with higher level management, the District Director. At the beginning of the February 14, 1985 session, there was a discussion concerning the extent to which the Respondent's representatives had the authority to bind the Respondent to any agreement which might be reached. The Union representatives who attended the negotiating session testified at the hearing that the Respondent's representatives left the room, apparently to make phone calls, and returned to announce that they now had full authority to bind the Respondent. The Judge, however, credited the Respondent's witnesses' testimony to the effect that they announced their lack of authority at the commencement of the meeting, that they never sought or announced a change in that position, and that they assumed that the Union's representatives acquiesced in that position in the interest of concluding an agreement subject to approval by the District Director. In the course of the February 14, 1985 bargaining session, the parties reached agreement on all the outstanding issues presented by the move of Group 1117 employees. The Union left the session with the belief that it had a binding agreement. Subsequently, the District Director raised concerns about portions of the February 14, 1985 agreement and refused to execute the agreement. The Union refused to change the agreement reached at the bargaining table and filed the unfair labor practice charges that led to this complaint. III. Judge's Decision The Judge concluded that the General Counsel had not established, by a preponderance of the evidence, that a final agreement was reached at the bargaining session held on February 14, 1985. The Judge based that conclusion on her finding that the Respondent's representatives indicated at the beginning of the session that they did not have the authority to bind the agency and that they did not waver from that position. The Judge found that the Union's President at the time of the incident was aware of the Respondent's past failure to send fully authorized representatives to bargaining sessions. Therefore, the conclusions reached at that session were, in effect, only tentative pending the approval of higher level management officials. Under those circumstances, the Judge concluded that the Respondent did not act in violation of section 7116(a)(1) and (5) of the Statute, as alleged, when it failed to give final approval to, and implement, any agreement reached at the February 14, 1985 bargaining session. The Judge also concluded that the Respondent failed to send representatives to the February 14, 1985 bargaining session who had the capability of binding the Respondent to an agreement, in violation of section 7116(a)(1) and (5) of the Statute. In so concluding, the Judge acknowledged the Respondent's contention that the complaint did not specifically charge it with the misconduct which is the basis of the violation. However, the Judge concluded that the allegation that the Respondent failed to send fully authorized representatives to the February 14, 1985 bargaining session was inherent in the complaint and that the matter was fully litigated at the hearing. In that regard, the Judge found that the testimony at the hearing presented by the Respondent demonstrated that its representatives made clear to the Union's representatives at the outset of the session that they did not have the authority to bind the Respondent and that they consistently maintained that position. The Respondent's defense was that the Union understood the position of management's representatives and agreed to continue with the negotiating session on the terms set by the Respondent. The Judge concluded that any Union acquiescence to the continuation of bargaining without fully empowered management representatives was not so clear and unambiguous as to constitute a waiver of its statutory right to bargin with agency representatives who were fully empowered to commit the Respondent to an agreement. The Judge recommended that the Respondent be ordered to continue the negotiations of February 14, 1985, with duly authorized representatives. IV. Positions of the Parties The Respondent excepts to the Judge's finding that it violated section 7116(a)(1) and (5) of the Statute by failing to send to the February 14, 1985 negotiations representatives who were fully empowered to represent the Respondent. The Respondent does not except to the substance of the Judge's finding, but rather to the Judge's conclusion that the complaint was sufficiently broad so as to encompass the activity she found to be violative and that the matter of whether or not there were fully empowered representatives was fully litigated at the hearing. The Respondent contends that the complaint was never amended to specifically allege that it violated the Statute by failing to provide fully empowered representatives. The Respondent also excepted to the Judge's failure to strike and disregard the testimony of one of the witnesses for the General Counsel who had been shown, prior to the hearing, a document obtained by the General Counsel from the Respondent in the course of its investigation. The Judge found that it was a violation of 5 CFR Section 2423.7(d) for the General Counsel's witness to have been shown the document in question, but she concluded that a sufficient remedy was for her to treat the matter as casting doubt on the credibility of the affected witness and the other Union witnesses with whom the affected witness was likely to have discussed the matter prior to the hearing. The Respondent contends that the Judge's action was insufficient as a remedy for such "egregious" conduct by the General Counsel. Neither the General Counsel nor the Charging Party excepts to the Judge's decision. In their oppositions to the Respondent's exceptions, the General Counsel and the Charging Party essentially support the validity of the Judge's decision with respect to the matters to which the Respondent excepts. V. Analysis The Authority finds that the Judge's decision is correct and should be adopted. With respect to the question of whether the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to provide representatives who were fully empowered to commit the Respondent to any agreement reached with the Union at their February 14, 1985 negotiating session, the Judge found that the matter was fully litigated at the hearing. The Authority concludes that this finding by the Judge, as well as the Judge's resolution of the issue of whether the Respondent was provided with adequate notice at the hearing that it was being charged with such misconduct, are supported by the record. Thus, in its opening statement, the Charging Party stated: The Union's post-hearing brief will show that the Authority case law clearly holds that failure to authorize representative at the table to commit the party to a formal agreement or a final agreement. In the absence of mutual consent otherwise constitutes bad faith bargaining and violation of Sections (a)(1) and (5) of the Statute. (sic) (Transcript of Proceedings before the Judge, July 16, 1985, at 20.) Further, the Charging Party's representative at the hearing repeated this contention in his closing argument, and the General Counsel supported this position as an alternative to the allegation that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to bargain in good faith by failing to execute the agreement reached on February 14, 1985. The Judge found that the General Counsel, by showing one of its witnesses, prior to the hearing, a document obtained from the Respondent in the course of its investigation, violated the policy set forth in section 2423.7(d) of the Authority's Rules and Regulations. We conclude that the Judge, based on the reasoning set forth in her decision, acted appropriately in deciding that the actions cast doubt on the credibility of that witness' testimony, as well as the testimony of other Union witnesses with whom the affected witness was likely to have discussed the matter, rather than striking and disregarding their entire testimony as requested by the Respondent before the Judge and its exceptions to the Judge's decision. VI. Conclusion Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority has reviewed the rulings of the Judge made at the hearing, finds that no prejudicial error was committed, and affirms these rulings. The Authority has considered the Judge's Decision, the Respondent's exceptions to the Judge's finding of a violation, the oppositions to the Respondent's exceptions submitted by the General Counsel and the Charging Party, and the entire record, and adopts the Judge's findings, conclusions, and recommended Order. We therefore conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to bargain in good faith at the February 14, 1985 negotiating session with the Union by sending representatives who were not fully authorized to conclude an agreement as required by section 7114(b)(2) of the Statute. In agreement with the Judge, and noting that no exceptions were filed to this aspect of her conclusions, we also conclude that the Respondent did not violate section 7116(a)(1) and (5) of the Statute by failing to execute and implement the agreement reached between the parties on February 14, 1985 because, as found by the Judge, no final agreement requiring execution and implementation was reached at that time. Accordingly, those aspects of the complaint shall be dismissed. ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Federal Service Labor-Management Relations Statute, it is ordered that the Internal Revenue Service, Brooklyn District shall: 1. Case and desist from: (a) Failing to bargain in good faith by resing and failing to designate an agency representative empowered to negotiate fully with the National Treasury Employees Union and enter into a final and binding agreement as to the impact and implementation of the relocation of the Group 1117 employees, Examination Division, Brooklyn District, Mineola, New York, subject only to review pursuant to section 7114(c) of the Statute. (b) 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) Upon request by the National Treasury Employees Union for continued bargaining, designate an agency representative empowered to negotiate fully and enter into a final and binding agreement as to the impact and implementation of the relocation of the Group 1117 employees, Examination Division, Brooklyn District, Mineola, New York, subject only to review pursuant to section 7114(c) of the Statute. (b) Post at its facilities 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 District Director, Brooklyn District, Internal Revenue Service, or a designee, and shall be 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 said Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region II, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. IT IS FURTHER ORDERED that the complaint, insofar as it alleges a violation of section 7116(a)(1) and (5) of the Statute for failure to approve a binding agreement, shall be, and it hereby is, dismissed. Issued, Washington, D.C., August 12, 1986. Jerry L. Calhoun, Chairman 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 fail to bargain in good faith by refusing and failing to designate an agency representative empowered to negotiate fully with the National Treasury Employees Union and enter into a final and binding agreement as to the impact and implementation of the relocation of the Group 1117 employees, Examination Division, Brooklyn District, Mineola, New York, subject only to review pursuant to section 7114(c) of the Statute. 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 Statute. WE WILL, upon request by the National Treasury Employees Union for continued bargaining, designate and an agency representative empowered to negotiate fully and enter into a final and binding agreement as to the impact and implementation of the relocation of the Group 1117 employees, Examination Division, Brooklyn District, Mineola, New York, subject only to review pursuant to section 7114(c) of the Statute. 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 II, Federal Labor Relations Authority, whose address is: 26 Federal Plaza, Room 3700, New York, New York 10278, and whose telephone number is: (212) 264-4934. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 2-CA-50241 INTERNAL REVENUE SERVICE AND INTERNAL REVENUE SERVICE, BROOKLYN DISTRICT Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 53 Charging Party/Union Eileen P. Collins and Robert F. Hermann, For the Respondent Michael J. Wolf, For the Charging Party/Union Cecille O'Connor and E. A. Jones, For the General Counsel Federal Labor Relations Authority Before: ISABELLE R. CAPPELLO Administrative Law Judge DECISION Statement of the Case This is a proceeding under Title VII of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1191, 5 U.S.C.7101 et seq. (1982), commonly known as the Federal Service Labor-Management Relations Statute, and hereinafter referred to as the Statute, and the rules and regulations issued thereunder and published at 5 CFR 2411 et seq. Pursuant to a charge of an unfair labor practice filed by the Charging Party on April 8, 1985, the Regional Director of Region II of the Federal Labor Relations Authority (hereinafter, the Authority), investigated and, on May 31, filed the complaint initiating this proceeding. In paragraph 8(a) of the complaint it is alleged that, on or about February 14, 1985, the Charging Party/Union and agents of Respondent "negotiated, reached agreement, and initialed off at the bargaining table on a written memorandum of understanding embodying the terms agreed to regarding the impact and implementation of the relocation at the Mineola post-of-duty." In paragraph 9 of the complaint it is alleged that "at all times thereafter, Respondent, by (its agent, District Director) John Jennings, failed and refused, and continues to fail and refuse, to execute and implement the memorandum of understanding . . ." See General Counsel's Exhibit 9(c). It is then alleged, in paragraphs 10 and 11, that by the acts alleged in paragraph 9, Respondent violated Sections 7116(a)(1) and (5) of the Statute. /1/ The unfair labor practice charge filed by the Charging Party/Union also alleges a violation of Sections 7116(a)(1) and (5) by the specific act of the activity refusing to execute and implement a negotiated agreement entered into on February 14. See General Counsel Exhibit 9(a). Respondent denies that the alleged violations occurred. A hearing was held on July 16 and 17, 1985, in New York City. The parties appeared, adduced documentary evidence, and examined witnesses. Briefs were filed by the General Counsel and the Charging Party on September 9 and by the Respondent on September 10. Based upon the record made in this proceeding and the briefs, I enter the following findings of fact and conclusions of law, and recommend the entry of the following order. Findings of Fact /2/ 1. At all times material herein, the Charging Party has been, and is now, a labor organization within the meaning of Section 7103(a)(4) of the Statute. 2(a). At all times material herein, the Internal Revenue Service (IRS) has been, and is now, an agency within the meaning of Section 7103(a)(3) of the Statute. (b). At all times material herein, IRS, Brooklyn District has been, and is now, a constituent entity within IRS and an agent acting on its behalf. 3. At all times material herein, the following named persons occupied positions in the IRS Brooklyn District as set forth below, opposite their names: John Jennings - District Director Donald Mitgang - Assistant District Director Harvey Silverman - Chief, Examination Division Gail Peck - Chief, Labor Relations 4. At all times material herein, the individuals named above in paragraph 3, have been, and are now, supervisors and/or management officials as defined in Section 7103(a)(10) and (11), respectively, of the Statute and have been, and are now, agents of Respondent acting on its behalf. 5(a). At all times material herein, the National Treasury Employees Union (NTEU) has been, and is now, the certified exclusive representative of a consolidated nationwide unit of certain employees of IRS, including all professional nonprofessional employees employed in the District, Region and National Offices of IRS, excluding all management officials, supervisors, confidential employees, federal employees engaged in personnel work in other than a purely clerical capacity, guards and other employees not relevant herein. (b). At all times material herein, NTEU has delegated to its Chapter 53 authority to act as its representative for the purpose of collective bargaining for approximately 1200 of Respondent's employees, including those employed in the IRS, Brooklyn District, at Mineola, New York. Chapter 53's delegation has been recognized by Respondent. George Greenberg is President of Chapter 53. 6(a). On or about October 19, 1984 and October 26, 1984, the Charging Party and Respondent, respectively, entered into an informal settlement agreement which provided, in part, that IRS Brooklyn District would negotiate with NTEU over the impact and implementation of the relocation of bargaining unit employees in Group 1117 of IRS's Examination Division, Brooklyn District. (b). On or About November 8, 1984, the agreement described above in paragraph 6(a) became, by its terms, effective. On December 11, 1984, NTEU made a demand to negotiate and submitted a set of proposals to Ms. Peck. No response was received and, on or about January 25, 1985, NTEU renewed its demand, resubmitted its proposals, and suggested specific bargaining dates. The afternoon of February 14, 1985, was finally set as the bargaining date at a labor-management meeting on February 1. 7(a). Prior to a February 14, 1985, bargaining session between Chapter 53 and Respondent over a relocation of Group 1117, these parties had had approximately five or six other negotiations. See TR. II. 99. Evidence was adduced as to three, in particular. (b). One involved bargaining over the establishment of Revenue Agent Group 1103. Agreement was reached on this matter in November 1984. Mr. Mitgang signed for IRS and Mr. Greenberg for Chapter 53. Before the agreement was signed, David Krieg, Chief of Personnel and the supervisor of Ms. Peck, sent a "draft agreement" to Mr. Mitgang for his "OK" and, if "OK," it was to be sent out to NTEU "for review" (R. Exh. 10). (c). Another involved bargaining over Taxpayer Delinquent Accounts (TDA). Negotiations began on this subject in or around July 1984. Final agreement was reached around July 1985. The delay was over an "outstanding issue" (TR. II. 206). Ms. Peck and Mr. Greenberg, as well as former Chapter 53 President, Peter Grimaldi, negotiated the TDA matter. Ms. Peck and Mr. Greenberg each kept bargaining notes. Ms. Peck's practice was to produce typed draft agreements from her bargaining notes and route a copy to the District Director for his approval. These drafts did not include items which the negotiators had put on "hold" or "impasse." There was no evidence that this practice was ever acquiesced in by, or communicated to NTEU. And it is not an express written rule, regulation or policy of the District. When Ms. Peck sent a copy of the TDA draft to Mr. Greenberg, it contained no changes made by the District Director. It was Ms. Peck's practice to forward a copy of her typed notes to Mr. Greenberg, who would check it for conformance with his bargaining notes. If there was a disparity, Mr. Greenberg could request further negotiations. Ms. Peck forwarded many such memoranda to Mr. Greenberg prior to reaching final agreement because the memoranda did not reflect items which the parties had agreed to hold or had come to impasse upon. (d). Another involved bargaining over Employee Performance Folders (EPF). Ms. Peck, Mr. Greenberg and Mr. Grimaldi negotiated concerning EPF, with Ms. Peck and Mr. Greenberg each keeping bargaining notes. These sessions took place in July and September 1984. Mr. Greenberg noted "impasse" or "hold" next to items which reflected issues that were not agreed to during negotiations, as was his practice. After the negotiation session, a draft memorandum of agreement was transmitted to the District Director for his approval. Mr. Mitgang reviewed it for substance. On November 23, 1984, a copy of the "proposed" memorandum was sent by Ms. Peck to Mr. Greenberg for his acceptance, if agreeable to him (R. Exh. 4). On February 11, 1985, Mr. Greenberg wrote to Ms. Peck that: I have consistently told you that Chapter 53 wishes to negotiate the outstanding items before management broke off negotiations. We will not sign an agreement which you have unilaterally drawn up. See R. Exh. 5 and see also TR. II. 213. Additional negotiations took place in February 1985. EPF negotiations were concluded in March 1985 and final agreement reached. 8. Mr. Mitgang has been Assistant District Director since September 1982. At one time, he participated in a negotiation over alternate work schedules ("AUS"), was the spokesperson, and had authority to bind the District at the bargaining table. The District Director signed the agreement at a later date. 9. Since the AWS negotiations, Mr. Mitgang has not participated at the bargaining table; and agency representatives at the table have had authority only to "discuss the proposals of NTEU and management and to arrive at a proposed tentative agreement for the director" (TR. II. 142 and see also 144). It has been the practice of Mr. Mitgang to review the draft memoranda of agreement reached at the table, discuss them with the District Director, and then discuss any problems detected with the management bargaining team. Prior to the agreement reached at the February 14 bargaining session, no changes in substance had ever been renegotiated, except for matters which had been declared as non-negotiable. /3/ 10. On cross-examination, Mr. Mitgang conceded that, as a result of this hearing, he is "now aware" that the State requires management to send a team to the bargaining table which is fully authorized to enter into a binding agreement (TR. II. 196). He also conceded that the practice in issue in this case was inconsistent with management's obligation. See TR. II. 200. 11. Mr. Mitgang testified that "to (his) knowledge" the union was apprised of the fact that the agency bargaining team at the table had such limited authority (TR. II. 143) and that they were apprised of it through "various negotiations over the past period of time or two years or whatever it is" (TR. II. 144). Ms. Peck was also "confident" that the union knew of the tentative nature of agreements reached at the bargaining table and that they needed the approval of the Director (TR. II. 94). Mr. Mitgang admitted that there was no written policy on this limited authority; that no letter had been sent to George Greenberg, Chapter 53's President, about such authority; and Greenberg, Chapter 53's President, about such authority; and that he had never personally notified Mr. Greenberg of it. See TR. II. 181 and 194 and also TR. II. 94-95. Peter Grimaldi, Chapter 53's President from June 1983 until September 1984, was unaware that the agency was sending unauthorized representatives to the bargaining table; but his experience was "limited in that area" because Chapter 53 and Respondent only "came to possibly one agreement" during his administration (TR. II. 218). At first, Mr. Greenberg indicated that he knew of the practice. See TR. I. 99-100 where he responded as follows to questions put by Counsel for the General Counsel at the hearing on July 16, 1985, about a meeting between Mr. Greenberg and Michael J. Wolf, Assistant Counsel of NTEU, just before the negotiation session in February 14, 1985, began: Q. What problems with management bargaining in the past did you express to Mr. Wolf during that meeting prior to the negotiation session? A. I expressed that I didn't understand why we could not -- in other words, in negotiations that I had with the Assistant Director, Donald Mitgang, he always went and made a big issue as to the fact that he was ready to sign agreements and commit the district, and was the union so ready to do. And I didn't know -- I didn't understand why in the interim period that wasn't happening with management, why we couldn't take the same position that I or someone on my team was authorized to sign, why wasn't management authorized. Why couldn't we have the same standard as the Assistant District Director of Brooklyn. And he (Mr. Wolf) seemed to feel that we could; and that that would be the thing that we would pursue. See also TR. I. 97-98, where Mr. Greenberg testified that, at a February 1, 1985 labor-management meeting, the problem was discussed as to Mr. Jennings authorizing anyone from the management team, at negotiations, "to commit" (TR. I. 97-98). When recalled as a rebuttal witness, on July 17, 1985, however, Mr. Greenberg responded as follows to questions put by Counsel for the General Counsel: Q. Mr. Greenberg, prior to the 1117 negotiations has any IRS representative ever told you at the negotiating table that they didn't have authority to commit the agency? A. No. Q. Have you ever been aware of any practice of the agency in sending negotiators to the table without authority to bargain prior to February 14, 1985? A. No. Q. So you've never agreed to that practice? A. No. See TR. II. 204-205. Mr. Greenberg appeared to me to be candid and honest in the responding to the above-quoted questions put to him on July 16, and less so in responding to those put to him on July 17. Furthermore, Mr. Greenberg was not asked, on July 17, whether he was aware (as distinct from being told) of an agency practice of sending negotiators to the table without authority to commit and sign for the agency (as distinct from bargaining on its behalf). Thus his July 17 testimony is not necessarily in conflict with that given on July 16. Also, the Assistant Counsel for NTEU seemed aware that there was a "problem with (the District Director) authorizing people to negotiate for him" (TR. I. 97). Accordingly, I find that the current President of Chapter 53 was aware of the management practice of sending unauthorized representatives to the bargaining table, prior to the February 14, 1985, negotiations. 12(a). On February 14, 1985, bargaining teams from Chapter 53 and Respondent met to negotiate over the impact and implementation of a relocation of Group 1117 employees. Representing management were Gail Peck and Harvey Silverman. Ms. Peck has been Chief, Labor Relations, since 1982 and provides advice and guidance to managers, on labor matters. She also reviews union proposals and often participates in local negotiations with Chapter 53. Mr. Silverman has represented the Examination Division, as part of management's team, two to four times during the last two to three years. Representing Chapter 53 were Michael Wolf, Assistant Counsel for NTEU; George Greenberg, Chapter 53 President; and three Chapter 53 officers, Roslyn Haber, Gene Spitzer, and Peter Grimaldi. Prior to the meeting, Mr. Wolf and Mr. Greenberg agreed that Mr. Wolf would act as spokesperson and that unless the management team was "prepared to fully negotiate, to arrive at agreement," Chapter 53 would not negotiate until someone from Respondent was at the table "fully authorized" (TR. I. 35 and see also TR. II. 99-101). Nationwide, it is the practice of IRS and NTEU to send fully authorized representatives to the bargaining table. The contrary practice in the IRS Brooklyn District is an "anomaly" (TR II. 87). (b). As to what exactly transpired at the February 14 meeting, there is conflict. The two members of the management team testified, in agreement, that Ms. Peck was the "chief spokesman" for management and that she made it clear, at the outset of the meeting, and in response to a question put by Mr. Wolf, that her authority was limited and that final authority to sign rested with the Director. See the testimony of Ms. Peck at TR. II. 9, 100 and compare to that of Mr. Silverman at TR. II. 113-114, 122-123, 129, 131-133, who testified that Ms. Peck told Mr. Wolf that the agency's representatives lacked both the authority to sign and to commit the agency. The union members of the team also testified; but their recollections of specifics varied in some important details. Mr. Wolf recalled that Mr. Silverman was the chief spokesman for the agency (TR. I. 34 and 82) and could not recall Ms. Peck making any statement, at the outset, about the limited authority of the management team (TR I. 83). Mr. Greenberg and Ms. Haber affirmed that Ms. Peck made a statement, at the outset, that the management team could not commit to an agreement. (See TR. I. 101, 147, and 184). This "so annoyed" Ms. Haber that she "wrote it down" (TR. I. 184). The other members of the union team could not recall the reply, if any, of Ms. Peck. (See TR. I. 176 and 198). Generally, as to who from the management team was the chief spokesman, Mr. Greenberg affirmed that: "Basically, Mr. Silverman's response to (him) always is that he follows whatever he's told from Labor Relations is his standard response" (TR. I. 98). Ms. Peck and Mr. Silverman impressed me as credible witnesses, and their testimony was basically consistent. While they had some difficulty in recollecting all the events of the three-hour meeting on February 14, their recollections seemed more firm and honest than those of the union witnesses. One problem with relying on the recollections of the witnesses from the union team as to what the management team said is that they were admittedly "quite a boisterous group" at the bargaining table (TR. I. 68) with "arguments going on" and "a lot of voices being heard" (TR. I. 193). Accordingly, I find that Ms. Peck, Chief of Labor Relations, was management's chief spokesman at the February 14 meeting and clearly stated at the outset, that the authority of the management team was limited, and it could not commit the agency. (c). This announcement made the union team unhappy; and Mr. Wolf and Mr. Greenberg spoke out against it. See TR. I. 184-185 and TR. II. 123, 130 and 133. Mr. Wolf stated that such conduct constituted bad faith bargaining. Ms. Peck asked if they could not do business as usual. She did not explain what she meant by this statement. No one else recollected her making this statement. (d). According to the witnesses from the union team, either Ms. Peck or Mr. Silverman, or both (the witnesses were in disagreement as to this) thereupon left the room and, upon their return, gave the impression that they had authority to bind the agency. (e). Mr. Wolf recalled that both left the room and was "quite certain" that Mr. Silverman and not Ms. Peck made a phone call (TR. I. 37-38), to whom or about what he could not say (TR. I. 81); that upon their return to the room Mr. Silverman said something to the effect that: "I can bargain; let's go (TR. I. 38) or that "he was ready to bargain and that there was not a problem" (TR. I. 86) and that he had "verified his authority before coming to the table" (TR. I. 39) and "knew what his parameters were" and what he could agree to and what he couldn't agree to "and was prepared to come to an agreement" on everything, at least "if possible" (TR. I. 39). (f). Mr. Greenberg testified that, upon returning to the room, Ms. Peck "announced that they spoke to Brooklyn and they now have the authority to commit the district to this agreement" (TR. I, 102 and see also TR. I. 121, 131 and 157). /4/ (g). Mr. Spitzer testified that both Ms. Peck and Mr. Silverman stepped outside the room to make a phone call and came back and said they "had the authority to negotiate" (TR. I. 172 and see also TR. I. 176). He then testified that he "guess(ed) that Ms. Peck said this, but could not "really remember" (TR. I. 172). (h). Ms. Haber testified that both Ms. Peck and Mr. Silverman left the room and, upon their return, Ms. Peck said that "they were now authorized" (TR. I. 185). (i). Mr. Grimaldi testified that Ms. Peck left the room to make a telephone call and he "assume(d) that it was to confirm the fact that she had the power to sign for management" (TR. I. 98-199). He at first testified that Mr. Silverman stayed in the room and later testified he was not sure of this. See TR. I. 199 and 207. He could not recall the exact words of Ms. Peck upon her return, but inferred that she had the power to sign for management because the meeting continued (TR. I. 199). (j). Neither Ms. Peck nor Mr. Silverman could recall leaving the conference room to make phone calls while they were meeting with Chapter 53 on February 14. See TR. II. 78, 126 and 134. Ms. Peck did think that at a midway point, the parties broke to get a cup of coffee and to use the lounge. See TR. II. 97. (k). Based upon the testimony of Ms. Peck and Mr. Silverman, both credible witnesses, that they did not leave the conference room on February 14 to confirm their authority, and that both knew they had only the authority to reach a tentative agreement, I find that no such phone calls were made and that they never receded from Ms. Peck's statement, at the outset, that they had only limited authority. I find the testimony of the witnesses from the union bargaining team to be conflicting and not as credible as that of Ms. Peck and Mr. Silverman. Ms. Peck and Mr. Silverman testified to the effect that they believed that the union team acquiesced in their proceeding with limited authority because it did not break off negotiations. See TR. II. 80, 115 and 130. 13. Give-and-take negotiations took place on February 14, 1985, until agreement at the table was reached on each item. At the suggestion of Mr. Wolf, the parties initialled off on each item as agreement was reached on it. The parties were pleased with this process. One improvement was the fact that it eliminated the need and practice of the parties to keep separate bargaining notes. The negotiations concluded with good feelings all round. The initialling-off process avoided the problem of the participants reaching some kind of accord on the language of a particular proposal and then, later, disagreeing on what was actually agreed to and in what context. See TR. II. 117 and 139. The management team by initialling, did not intend to bind the agency. But the process may have misled some of the union negotiators into believing that the substance of the agreement reached was final, as this process had never been used before in Chapter 53 negotiations. Mr. Wolf conceded that he, however, had "great concerns" about the District Director and the "finality of the agreement" reached at the table, despite Mr. Silverman's apparent elation and his generous words about the negotiators' product at the conclusion of the bargaining session on February 14 (TR. I. 67). When Mr. Wolf emphasized to the management bargaining team that the NTEU expected an immediate signature from the District Director, Mr. Silverman responded that he had no control over the District Director. 14. Contrary to Ms. Peck's expectations, the agreement reached at the table did not meet the approval of the Assistant District Director or the Director. Several substantive concerns were expressed by them which Ms. Peck was asked to communicate to Mr. Greenberg. Mr. Mitgang found "unacceptable" to management items six, seven and eight of the agreement forwarded to him by Ms. Peck following the February 14 negotiations and discussed them with the District Director (TR. II. 173). (a). Item six provides that: "The Agency will provide reasonable isolation from distracting noise and mechanical equipment to each employee. Reasonable effort will be made to provide each employee with a window and blinds" (R. Exh. 1). Mr. Mitgang explained that there were approximately 13 employees who were relocated into a single office type setup with only so many windows, so that it was "impossible" to provide each employee with a window (TR. II. 174). He also objected that the employees were not put into any position where isolation from mechanical equipment or noise was of any concern. (b). Item seven provides: "Lack of access by revenue agents to conference room facilities can be used as a defense to any performance based actions brought against a revenue agent" (R. Exh. 1). Mr. Mitgang's objection to this item was that the employees had only moved from one floor to another and "still had access to all the conference rooms that they had access to prior to the move and (he) felt that putting that in the agreement was totally irrelevant to the agreement or the move itself" (TR. II. 175). He also felt that management could not accept lack of conference room facilities as a defense to any performance-based action. (c). Item eight provides that: "No employee will be required to work in an area which fails to comply with all applicable health and safety requirements. Health and safety conditions including those specified in 29 C.F.R. 1960 et al., will be monitored by a joint team of two persons, one appointed by the union and one appointed by the agency. Unhealthy or unsafe working conditions which are not rectified by the agency once brought to its attention can be grieved" (R. Exh. 1). He objected to this item because there is already a joint labor-management safety committee, so a second would be "a duplication of effort" (TR. II. 178). He also objected because 29 CFR 1960 already requires Respondent to provide safe working conditions. 15. Mr. Greenberg has refused to change the agreement reached at the table. See TR. II, 21. The agreement has not been signed. 16. It is a common practice, throughout IRS, for District Directors to perform the ministerial task of formally executing agreements which have been earlier reached at the bargaining table. 17. The National Office of Respondent reviews all agreements reached by NTEU and its District Directors for legality and negotiability. Discussion and Conclusions I. It has not been established, by a preponderance of the evidence, /5/ that a final agreement was reached at the bargaining table on February 14, 1985. The complaint alleges that Respondent violated Sections 7116(a)(1) and (5) of the Statute when its Brooklyn District Director failed and refused to execute and implement a memorandum of understanding reached on February 14, 1985, by management and union agents at the bargaining table. Establishing this violation requires proof that agreement was reached by the bargaining agents at the bargaining table. Based upon the most credible evidence of record, I have found that final agreement was not reached; and therefore it was not an unfair labor practice for the District Director to refuse to execute the agreement. The most that the General Counsel proved was that some members of the union bargaining team misinterpreted certain words and actions of the management team. In particular, they misunderstood the action of writing up and initialling off on each item as agreement was reached on it. This new process was suggested by the Assistant Counsel of NTEU and acquiesced in by the management team. The process worked well; and all parties were pleased with it. It eliminated the need for each side to keep bargaining notes. And it also eliminated the chance of the parties later disagreeing as to the language actually agreed upon. But by initialling off on an item the management team did not intend, and never said, that this meant that they were therby binding the agency. The management team made clear, at the outset of the bargaining session, that it had authority only to reach a tentative agreement at the bargaining table. It never receded from this statement. The problem the union bargaining team had with understanding what the management team was saying may have been caused by the fact that the union team was, admittedly, a boisterous group of individuals, given to a lot of argument, with a lot of voices apparently being heard at one time. See finding 12(b), above. I found nothing in the credited record to suggest that any misunderstanding on the part of the union team was induced by words or actions of the management team, as is argued. See C.P. Br. 18, 20 and 41. And I find significant the fact that the NTEU Assistant Counsel, after the three-hour bargaining session concluded, had "grave concerns" about the finality of the agreement reached insofar as the District Director was concerned. See finding 13, above. His astuteness proved to be correct -- there was no final agreement. II. It has been demonstrated, by a preponderance of the evidence, that Respondent violated Section 7116(a)(1) and (5) of the Statute when, on February 14, 1985, it failed to send representatives to the bargaining table with authority to commit it to an agreement. It is not disputed that this management obligation is included in the duty of parties to bargain in good faith, as required by Section 7116(a)(5) of the Statute, and not to interfere with the statutory rights of employees, as required by Section 7116(a)(1). See National Treasury Employees Union, 13 FLRA 554, 556. What Respondent argues is that this was not a specific act with which it was charged and "would be prejudicial to Respondent and would deny Respondent due process of law (to now rely on this act as constituting a statutory violation) as Respondent was not put on notice that this was a charge in the case" (R. Br. 24). Respondent's defense would apparently have been to show that "the Charging Party knew of Respondent's past practice in this area, knew of this limited authority of (its negotiators), yet acquiesced in this practice by negotiating with them" (R. Br. 25). Under similar circumstances, the Authority has rejected arguments of a respondent that it was denied the opportunity to present a proper defense, if the matter was fully litigated at the hearing. See Social Security Administration, 16 FLRA 56, fn. 1. I believe the matter was fully litigated here. It was shown that the President of Chapter 53 was aware that Respondent was sending representatives to the bargaining table who were not fully authorized to commit it to an argument. See finding 11, above. And Respondent had a full opportunity to show that the union team, on February 14, 1985, acquiesced in the practice. Counsel for Respondent was advised, in the opening statement of the NTEU Assistant Counsel, that he was raising this matter as an issue. See TR. I. 20. Respondent thereafter called, as witnesses, both management representatives who were present at the February 14 bargaining table. The management representatives testified that negotiations continued even after it was made clear to the union team that the management team had no authority to bind the agency. See findings 12 and 13, above. From these facts Respondent argues that the union team "acquiesced" in Respondent's sending unauthorized-to-bind representatives to the bargaining table (R. Br. 20). It is unlikely that Respondent could have proved more, had it received earlier notice of this act as a violation. Respondent did not prove union acquiescence, however. Respondent's own witnesses testified that the union team was "unhappy" about the situation. See finding 12(c) and TR. II. 130 and also 123 and 133. The union team had had to go through a difficult, lengthy process in getting management to the bargaining table over the matter on the table on February 14. See finding 6, above. And the NTEU Assistant Counsel, who is based in Washington, D.C. and does not normally participate in local negotiations, was present to assist in those local negotiations. Under these circumstances, unhappy though it was, the union team proceeded with negotiations. But I cannot conclude from this set of circumstances that it truly acquiesced in bargaining with management representatives who could not commit the agency. When a union waives a statutory right such as the right to face a management representative at the bargaining table who is authorized to commit the agency, it must so appear more clearly and unmistakably than it does in this case. See, e.g., Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri, 17 FLRA 408, 411 and Internal Revenue Service (District, Region National Office Units), 16 FLRA 904, 922-923. III. As a remedy the General Counsel and the Charging Party propose, inter alia, that Respondent execute and fully implement the agreement reached at the bargaining table on February 14, 1985. See C.P. Exh. 1 and G.C. Exh. 8. I do not consider this to be appropriate, since I have found that Respondent did not intend for its negotiators to enter into a binding agreement. Furthermore, I conclude that the objections raised by the Assistant District Director to the agreement reached at the bargaining table are not frivolous ones. See finding 14, above. Under all the circumstances, I believe a more appropriate order would be one requiring Respondent, upon request by NTEU, to bargain promptly and to send representatives to the bargaining table who are fully authorized to commit it to an agreement. A cease-and-desist and a posting order is also deemed to be appropriate. IV. Respondent continues to raise objections to the fact that the NTEU Assistant Counsel was allowed to participate in this proceeding as a witness and also as a counsel for NTEU. See R. Br. 14-15. As stated at the hearing, I do not consider this practice to be a desirable one. See TR. I. 9-12. One undesirable feature is that credibility as a witness may suffer when the witness also assumes the role of advocate. Nevertheless, I allowed that NTEU Assistant Counsel to be the lead-off witness; and he did not attempt to take the stand as a rebuttal witness. Thus, NTEU gained no perceptible trial advantage from this procedure. The one possible advantage NTEU did gain was saving money by having its Assistant Counsel assume dual roles. In my view, reducing the cost to parties of administrative proceedings is a matter which is appropriately weighed in the circumstances such as this. Since the credibility issues in this case have been resolved in favor of Respondent, it has no cause for further relief as to this matter. In view of the above conclusions, other issues raised by the parties need not be resolved. Ultimate Findings and Recommended Order 1. The General Counsel has not established, by a preponderance of the evidence, that Respondent committed the violative act named in paragraphs 8 and 9 of the complaint. 2. The General Counsel has established that Respondent violated Sections 7116(a)(1) and (5) of the Statute, as alleged in paragraphs 10 and 11 of the complaint by failing to send representatives to the bargaining table, on February 14, 1985, who were fully authorized to commit it to an agreement. Pursuant to Section 7118 of the Statute, and 5 CFR 2423.29, it is hereby ORDERED that: 1. Internal Revenue Service, Brooklyn District shall cease and desist from: (a) Failing to bargain in good faith by refusing and failing to authorize a designated agency representative to negotiate fully upon proper demand by the National Treasury Employees Union and enter into a final and binding agreement, subject only to review by the Respondent's National Office for legality and negotiability. (b) In any like or related manner, interfere with, restrain or coerce any employee in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. 2. Internal Revenue Service, Brooklyn District shall take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Upon proper demand by the National Treasury Employees Union for bargaining, promptly send a designated agency representative to negotiate fully and enter into a final and binding agreement, subject only to review by the Respondent's National Office for legality and negotiability, as to the relocation of the Group 1117 employees, Examination Division, Brooklyn District, Mineola, New York. (b) Post in all offices and posts of duty of the Internal Revenue Service, Brooklyn District, copies of the Notice of All Employees, attached hereto as Appendix A, on forms to be furnished by the Regional Director, Region II, Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the District Director, Brooklyn District, and shall be posted and maintained by him for sixty (60) consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to bargaining unit employees are customarily posted. The District Director shall take all reasonable steps to ensure that such Notices are not altered, defaced, or covered by any other material. (c) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region II, Federal Labor Relations Authority, in writing within 30 calendar days from the date of this order, as to what steps have been taken to comply herewith. ISABELLE R. CAPPELLO Administrative Law Judge Dated: December 17, 1985 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) Section 7116 provides, in pertinent part, that: (a) 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; . . . (or) (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter . . . . (2) The following abbreviations will be used herein. "TR. I" refers to the transcript dated July 16. "TR. II" refers to the transcript dated July 17. "G.C. Exh." refers to the exhibits of the General Counsel and "R. Exh." to those of Respondent. "G.C. Br." refers to the brief of the General Counsel, "R. Br." to that of Respondent, and "C.P. Br." to that of the Charging Party/Union. Corrections to the transcript are attached hereto and are made pursuant to 5 CFR 2423.19(r) and the unopposed motion of the General Counsel. (3) Respondent's Chief of Labor Relations so testified and seemed certain. See TR. II. 208. Mr. Mitgang testified that "changes" were made by him on "some" of the agreements reached at the bargaining table, but did not clarify whether they were of substance and seemed unclear on the point. See TR. II. 149. (4) Mr. Greenberg was the only union witness to have been shown a note written by Ms. Peck, in which she summarized the beginning of the February 14 meeting and noted that she had stated that no member of the management team had authority to sign for the agency. See R. 11. The note was apparently turned over to the Authority by Ms. Peck as part of its investigation. Ms. O'Connor showed the note to Mr. Greenberg prior to his testimony, asked him if he were aware of it, and discussed that there would be a difference of opinion as to what happened, preliminary to the negotiations. See TR. I. 138-141. Respondent argues that revealing this note to Mr. Greenberg violated 5 CFR 2423.7(d) and diminishes his credibility as a witness, as knowledge of it allowed him to fashion his testimony so that it would not conflict with this potential documentary proof and testimony of Ms. Peck. Upon reflection, I conclude that revealing the note to Mr. Greenberg was in violation of Authority policy, as stated in 5 CFR 2423.7(d): The purposes and policies of the Federal Service Labor-Management Relations Statute can best be achieved by the full cooperation of all parties involved and the voluntary submission of all potentially relevant information from all potential sources during the course of the investigation. To this end, it shall be policy of the Authority and the General Counsel to protect the identify of individuals and the substance of the statements and information they submit or which is obtained during the investigation as a manner of assuring the Authority's and the General Counsel's continuing ability to obtain all relevant information. (Emphasis added). Respondent urges that the "only appropriate remedy is to strike the testimony of the General Counsel's witnesses and dismiss the complaint" (R. Br. 13). In the particular circumstances of this case, I believe the better remedy is to treat this matter as casting doubt on the credibility of Mr. Greenberg, and to resolve any conflicts between his testimony and that of Respondent's witnesses in favor of the latter. Since, as President of Chapter 53, Mr. Greenberg may have discussed with the other union witnesses, particularly Mr. Wolf who acted as counsel for the Chapter in this proceeding, the information as to how Ms. Peck would be likely to testify, some doubt is also cast on the credibility of the account of the February 14 meeting given by all the union witnesses. In a prior instance where the General Counsel revealed documentary evidence to a union witness, before the hearing, the Authority declined to dismiss the complaint and, instead, held that "this impropriety affects the weight to be accorded" to the testimony of the union witness. See footnote 2 to Internal Revenue Service, Boston District Office, Boston, Massachusetts and Internal Revenue Service, Andover Service Center, Andover, Massachusetts, 5 FLRA 700, at 701. (5) This is the statutory burden of proof. See 5 U.S.C. Sections 7118(7) and (8). APPENDIX A 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 fail to bargain in good faith by refusing and failing to authorize a designated agency representative to negotiate fully upon proper demand by National Treasury Employees Union and enter into a final and binding agreement, subject only to review by the Respondent's National Office for legality and negotiability. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce any employee in the exercise of the rights assured by the Federal Service Labor-Management Relations Statute. WE WILL, upon proper demand by the National Treasury Employees Union for bargaining, promptly send a designated agency representative to negotiate fully and enter into a final and binding agreement, subject only to review by the Respondent's National Office for legality and negotiability, as to the relocation of the Group 1117 employees, Examination Division, Brooklyn District, Mineola, New York. (Agency or Activity) Dated: . . . By: (Signature) This Notice must remain posted for sixty (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 II, whose address is: 26 Federal Plaza, Room 2237, New York, New York, and whose telephone number is: (212) 264-4934.