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29 FLRA No. 12

INTERNAL REVENUE SERVICE

            Respondent

     and

NATIONAL TREASURY EMPLOYEES UNION

            Charging Party

Case No. 3-CA-20156
   (17 FLRA 731)

DECISION AND ORDER
ON REMAND

I . Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit. The court set aside the Authority's original Decision and Order and remanded the case for further proceedings consistent with its opinion.

The issue is whether an agency is obligated under the Federal Service Labor - Management Relations Statute (the Statute) to negotiate during the term of a collective bargaining agreement on negotiable union-initiated proposals concerning matters which are not covered by the agreement and were not waived by the union during negotiation of the agreement. We conclude that agencies have an obligation under the Statute to bargain on such proposals.

II . History of the Case

A . Background

During the existence of two collective bargaining agreements with the Respondent, referred to as the NORD (for National Office, Regions and Districts) and Service Center Agreements, the Union made a written request to negotiate concerning a number of matters not addressed in the agreements. The Respondent refused to bargain on the Union's proposals, essentially contending that since it had not made [PAGE] any changes in the areas described by the proposals, it had no duty to bargain. The Union filed an unfair labor practice charge and a complaint was issued. The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate with the Union because the mid-term proposals were unrelated to any changes in conditions of employment initiated by the Respondent.

B . Administrative Law Judge's Decision

The Judge found that the Respondent violated the Statute as alleged in the complaint. The Judge concluded that the duty to bargain in good faith imposed on agencies by the Statute includes an obligation 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 agreement. In support of his conclusion, the Judge relied upon precedent under the National Labor Relations Act, especially Jacobs Manufacturing Company, 94 NLRB 1214 (1951), enf'd, 196 F.2d 680 (2d Cir. 1952). The court in that case concluded that in the absence of a waiver, an employer has the duty to bargain during the term of a collective bargaining agreement concerning matters neither discussed nor incorporated into the agreement.

C . Previous Decision and Order of the Authority

On April 24, 1985, the Authority issued its previous Decision and Order in the case, Internal Revenue Service, 17 FLRA 731 (1985). The Authority concluded, contrary to the Administrative Law Judge, that the Respondent was not obligated to bargain over the Union-initiated proposals during the term of the agreements. In reaching that conclusion, the Authority found that Congress intended to limit the bargaining obligation over union-initiated proposals to situations where the parties were negotiating a basic collective bargaining agreement. The Authority determined that outside of that context, Congress intended the bargaining obligation to exist only with respect to changes in established conditions of employment proposed by management. The Authority reasoned that to find an obligation under the Statute for agencies to bargain regarding a union's mid-term proposals unrelated to changes initiated by management would not promote the purposes and policies of the Statute. The Authority found that mid-term bargaining could be required only where management sought to initiate changes in established conditions of employment; [ v29 p2 ] where the parties had negotiated a reopener provision in their agreement; and where management's exercise of its rights under section 7106(a) of the Statute was subject to bargaining under section 7106(b)(2) and (3).

The Authority concluded that the Respondent was not obligated to bargain over the Union's proposals in this case and that its failure to do so did not constitute an unfair labor practice. The Authority therefore dismissed the complaint and the Union appealed.

D . The Court's Decision

In NTEU v. FLRA, 810 F.2d 295 (D.C. Cir. 1987), the court set aside the Authority's decision in this case and in Internal Revenue service (District Office Unit), Department of the Treasury, 18 FLRA 361 (1985), and remanded the cases to us. 1 Based on clear private sector precedent on the specific issue presented, and express Congressional intent to promote and encourage collective bargaining and basic principles of labor law, the court concluded that the Authority's decision was contrary to the intent of Congress and the purposes of the Statute. More specifically, the court concluded that: (1) the relevant provisions of the Statute do not distinguish mid-term bargaining from any other type of bargaining in terms of the mutual obligation of the parties to negotiate; (2) the language in the Senate Report relied upon by the Authority in reaching its decision. 2 was "ambiguous" and inconsistent with the adoption of the House version of the Statute, which was designed to expand the scope of negotiations; and (3) Congress was aware of clear precedent in the private sector at the time of enactment, especially Jacobs Manufacturing Company.

Further, the court found that the Authority's decision did not further the statutory goals of equalizing the positions of unions and management at the bargaining table and of providing protections for the special needs of the Government in the collective bargaining process. As to protecting Governmental needs, the court determined that the statutory scheme established by Congress provides such protection by limiting the areas that are subject to bargaining, [ v29 p3 ] rather than by restricting the circumstances of bargaining. The court also determined that to allow management to raise new issues during the life of an agreement but to deny that right to the employees' representative would produce an inequality in bargaining power without express statutory support or strong policy justification. The court concluded that to limit the Union's right to initiate mid-term bargaining would provide management with an unwarranted advantage and violate a guiding purpose of the Statute.

For those reasons, the court set aside the Authority's decision and remanded the case for further proceedings.

III . Analysis and Conclusions

We have carefully reviewed the previous position of the Authority with respect to union-initiated mid-term bargaining in light of the court's decision.

In agreement with the court, we find that express congressional intent to promote and expand collective bargaining in the Federal service is advanced by permitting labor organizations in certain circumstances to initiate bargaining during the term of a collective bargaining agreement. Additionally, we agree that the goal of providing more equality in the positions of unions and agencies at the bargaining table likewise is promoted by requiring bargaining on union-initiated, mid-term proposals in some circumstances. Moreover, as the court pointed out, the Statute provides protection for the vital interests of the Government by limitations on the scope of bargaining.

With regard to the private sector experience described by the court, we find that experience instructive in fashioning an appropriate standard for mid-term bargaining in the Federal sector. For example, in the case cited by the court, Jacobs Manufacturing Co., the U.S. Court of Appeals for the Second Circuit found that the purpose of section 8 (d) of the National Labor Relations Act, as amended, 3 to give [ v29 p4 ] stability to agreements, conflicted with the general purpose of the Act. The general purpose is to require employers to bargain on employee demands whenever made so as to promote peaceful resolution of disputes. The Second Circuit determined that the general purpose should be given effect to the extent that there is no contrary provision in the Act. The court further determined that the exception to the duty to bargain in section 8(d) is precise and explicit, that is, neither party is required to bargain concerning any modification of "terms and conditions contained in a contract for a fixed period(.)" The court found that since the language was precise and explicit, the exception did not relieve the employer of its duty to bargain with the union concerning subjects which were neither discussed by the parties during negotiations nor embodied in their collective bargaining agreement. However, the court in Jacobs did not define an employer's mid-term duty to bargain on subjects which were discussed during negotiations but on which the parties did not reach written agreement.

In agreement with the D.C. Circuit in this case and consonant with case law in the private sector, we conclude that the duty to bargain in good faith imposed by the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union proposals concerning matters which are not contained in the agreement unless the union has waived its right to bargain about the subject matter involved. Such a waiver of bargaining rights may be established by (1) express agreement, or (2) bargaining history. Further, any such waiver must be clear and unmistakable, 4 and our determinations in this regard will be made on a case-by-case basis.

As to the first category of waiver, a union may contractually agree to waive its right to initiate bargaining in general by a "zipper clause", that is, a clause intended to waive the obligation to bargain during the term of the agreement on matters not contained in the agreement. Or, a union may waive its right to initiate bargaining over a particular subject matter. In determining whether a contract provision constitutes a clear and unmistakable waiver of the union's right to initiate bargaining, we will examine the wording of the provision as well as other relevant provisions of the contract, bargaining history, and past practice. [ v29 p5 ]

The second category of waiver, clear and unmistakable waiver as evidenced by bargaining history, concerns subject matters which were discussed in contract negotiations but which were not specifically covered in the resulting contract. In this category, waiver may be found, based on a case-by-case analysis of the facts and circumstances of each case, where the subject matter of the proposal offered by the union during mid-term negotiations was fully discussed and explored by the parties at the bargaining table. For example, where a union sought to bargain over a subject matter but later withdrew its proposal in exchange for another provision, a waiver of the union's right to bargain over the subject matter which was withdrawn would be found. The particular words of proposals offered during contract and mid-term negotiations need not be identical for a waiver to exist. On the other hand, the fact that a mid-term proposal may relate to a general subject area covered in a collective bargaining agreement will not relieve an agency of its obligation to bargain. Rather, the determinative factor is whether the particular subject matter of the proposals offered during contract and mid-term negotiations is the same.

In summary, we conclude that the duty to bargain in good faith imposed by the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union-initiated proposals concerning matters which are not addressed in the agreement and were not clearly and unmistakably waived by the union during negotiation of the agreement. Previous Authority decisions not consistent with this conclusion will no longer be followed.

In this case, the record reflects that the matters addressed in the Union's mid-term proposals were not covered by the parties' collective bargaining agreements. Moreover, as determined by the Judge, 17 FLRA 746-48, the record does not support the Respondent's contentions that the Union agreed to "zipper clauses" in the agreements or that the Union's proposals were fully discussed during the negotiations that led to the agreements. The Judge found that there was an absence of essential details of the parties' discussions and that the only thing that could be concluded on the basis of the record evidence is that the Union submitted some proposals which for some unexplained reason were not included in the parties' subsequent collective bargaining agreements. In these circumstances, we agree with the Judge that the Union did not clearly and unmistakably waive its right to bargain on its mid-term proposals. [ v29 p6 ]

Therefore, we now find, based on the court's decision and in agreement with the Administrative Law Judge, that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to bargain on the Union's mid-term proposals on the ground that the proposals were unrelated to any changes initiated by management. 5

Accordingly, we reverse our previous Order dismissing the complaint in this case and substitute the following:

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Internal Revenue Service shall:

1. Cease and desist from:

(a) Refusing to bargain with the National Treasury Employees Union, the exclusive representative of its employees, on negotiable proposals submitted by the Union during the term of existing collective bargaining agreements, where the proposals do not concern matters covered by the agreements and the Union did not clearly and unmistakably waive its right to bargain on such mid-term proposals during negotiation of those agreements.

(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 actions in order to effectuate the purposes and policies of the Statute.

(a) Upon request, bargain with the National Treasury Employees Union on negotiable proposals submitted by the Union during the term of existing collective bargaining agreements, where the proposals do not concern matters covered by the agreements and the Union did not clearly and unmistakably waive its right to bargain on such mid-term proposals during negotiation of those agreements. [ v29 p7 ]

(b) Post at its offices covered by the NORD and service Center Agreements 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 Deputy Commissioner of the Internal Revenue Service and they shall be posted 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.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

Issued, Washington, D.C., September 28, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v29 p8 ]

                        NOTICE TO ALL EMPLOYEES
          AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
                 AND TO EFFECTUATE THE POLICIES OF THE
         FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
                     WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to negotiate with the National Treasury Employees Union, the exclusive representative of our employees, on negotiable proposals submitted by the Union during the term of existing collective bargaining agreements, where the proposals do not concern matters covered by the agreements and the Union did not clearly and unmistakably waive its right to bargain on such mid-term proposals during negotiation of the agreements.

WE WILL NOT in any like or related manner, interfere with, restrain or coerce our employees represented by the National Treasury Employees Union in the exercise of their rights assured by the Statute.

WE WILL, upon request, negotiate with the National Treasury Employees Union on negotiable proposals submitted by the Union during the term of existing collective bargaining agreements where the proposals do not concern matters covered by the agreements and the Union did not clearly and unmistakably waive its right to bargain on such mid-term proposals during negotiation of the agreements.

                              _____________________________
                                         (Agency)

Dated:_____________________By:_____________________________
                               (Signature)        (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region III, whose address is: 1111 18th Street, NW, P.O. Box 33758, Washington, DC 20033-0758 and whose telephone number is: (202) 653-8500. [PAGE]

FOOTNOTES

Footnote 1 We will issue a separate Decision and Order on Remand in 18 FLRA 361.

Footnote 2 S. Rep. No. 969, 95th Cong., 2d Sess. 40 (1978).

Footnote 3 section 8(d) provides, in pertinent part, that the duty to bargain "shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract."

Footnote 4 See Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981).

Footnote 5 We note that the Respondent did not raise any negotiability arguments as a basis for its refusal to bargain on the Union's proposals.

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