---

29 FLRA No. 28

INTERNAL REVENUE SERVICE
(DISTRICT OFFICE UNIT)
DEPARTMENT OF THE TREASURY

              Respondent

        and

NATIONAL TREASURY EMPLOYEES UNION

              Charging Party

Case No. 3-CA-774
  (18 FLRA 361)

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 remanded the case for further proceedings consistent with its opinion.

The issue is whether the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by refusing to negotiate with the Charging Party (the Union) on proposals submitted by the Union during the term of a collective bargaining agreement between the Respondent and the Union. In accordance with our recent Decision and Order on Remand in Internal Revenue Service, 29 FLRA No. 12 (1987), we conclude that the Respondent violated the Statute as alleged.

II . History of the Case

A . Background

During the term of a collective bargaining agreement between the Union and the Respondent, the Respondent notified the Union that the Office of Personnel Management (OPM) had delegated authority to the Department of the Treasury for the [PAGE] recruitment and examination of applicants for the position of Internal Revenue Agent, GS-512, at the GS-5 and GS-7 levels, and that Treasury had delegated the authority to the Respondent. Although not required to do so, the Respondent decided to use the same procedures, methodology and criteria previously utilized by OPM in the staffing activities. The Union submitted a number of proposals on the subject for negotiations. The Respondent maintained that since there was no change in the manner in which the staffing activities were to be performed, other than a change in the location of the offices where applications would be filed, it did not have an obligation to bargain with the Union on the matter and would not do so. 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 bargain with the Union over the impact and implementation of the delegation of authority. The General Counsel contended that the Union's proposals were related to terms and conditions of employment; were negotiable under the Statute; and were not contrary to the provisions of the OPM delegation. The Respondent did not challenge the General Counsel's contentions, but did dispute the conclusion that its refusal to bargain was a violation of the Statute. The Respondent continued to maintain that no change in conditions of employment occurred and, therefore, that there was no duty to bargain.

B . Administrative Law Judge's Decision

The Judge concluded that the Respondent violated the Statute as alleged in the complaint. In reaching his conclusion, the Judge found that although no change in the recruitment and selection procedures had occurred, the Respondent had a duty to bargain on the Union's impact and implementation proposals. The Judge reasoned that the Respondent's new authority over matters affecting working conditions gave rise to a duty to bargain because any "past practice" which had developed when the function was under OPM "has no bearing on the practice which the Respondent might now choose to utilize...."

C . Previous Decision and Order of the Authority

On June 7, 1985, the Authority issued its previous Decision and Order in this case, Internal Revenue Service (District Office Unit), Department of the Treasury, 18 FLRA 361 (1985). Relying on its decision in Internal Revenue Service, 17 FLRA 731 (1985), the Authority concluded that the Respondent had no duty to bargain on the Union's proposals in [ v29 p2 ] the circumstances involved. In Internal Revenue Service, the Authority had determined that except for union proposals related to changes in established conditions of employment made by management, an agency did not have an obligation under the Statute to bargain over union-initiated proposals during the life of a collective bargaining agreement. The Authority found that since a collective bargaining agreement was in effect when the Respondent notified the Union of the delegation of authority from OPM, and since the "procedures, methodology and criteria" utilized in the staffing process were not changed, the Respondent was not obligated to bargain with the Union on the Union's proposals. The Authority held that the Respondent's refusal to bargain 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 decisions in Internal Revenue Service and in this case and remanded the cases to us.

In brief, the court concluded that in light of clear private sector precedent on the specific issue presented, express congressional intent to promote and encourage collective bargaining, and basic principles of labor law, the Authority's decision was contrary to the intent of Congress and the purposes of the Statute.

III . Analysis

As indicated above, we recently issued our Decision and Order on Remand in the Internal Revenue Service case. In that decision, we concluded 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 contained in the agreement, unless the union has clearly and unmistakably waived its right to bargain about the subject matter involved during negotiation of the agreement.

In this case, the delegation of authority to the Respondent for the staffing of the Internal Revenue Agent position occurred after the Respondent and the Union negotiated their agreement. It is therefore clear that the impact and implementation of the delegation is a matter not covered by the parties' agreement. Moreover, there is no showing that the [ v29 p3 ] Union clearly and unmistakably waived its right to bargain on the matter during the life of the agreement, for example, by agreeing to a "zipper clause" in the agreement. Additionally, we note that the Respondent did not contest the General Counsel's contention that the Union's mid-term impact and implementation proposals were negotiable.

Accordingly, based on our Decision and Order on Remand in Internal Revenue Service, and without passing upon whether the delegation of authority to the Respondent resulted in a change in conditions of employment, we now find that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to bargain on the proposals submitted by the Union during the term of an existing collective bargaining agreement. Accordingly, we rescind 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 Federal Service Labor - Management Relations 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 concerning staffing of the position of Internal Revenue Agent, GS-512, at the GS-5 and GS-7 levels, submitted by the Union during the term of a collective bargaining agreement with the Union, where the proposals do not concern matters covered by the agreement and the Union did not clearly and unmistakably waive its right to bargain on such mid-term proposals during negotiation of the agreement.

(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 to effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute:

(a) Upon request, bargain with the National Treasury Employees Union on negotiable proposals concerning the [ v29 p4 ] staffing of the position of Internal Revenue Agent, GS-512, at the GS-5 and GS-7 levels, submitted by the Union during the term of a collective bargaining agreement with the Union, where the proposals do not concern matters covered by the agreement and the Union did not clearly and unmistakably waive its right to bargain on such mid-term proposals during negotiation of the agreement.

(b) Post at its National, Regional and District Offices 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 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 should be taken to ensure that such notices are not altered, defaced, or covered by any other material.

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

Issued, Washington, D.C., September 30, 1987.

Jerry L. CALHOUN, Chairman

Henry B. Frazier III, Member

Jean MCKEE, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v29 p5 ]

                   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 bargain with the National Treasury Employees Union, the exclusive representative of our employees, on negotiable proposals concerning the staffing of the position of Internal Revenue Agent, GS-512, at the GS-5 and GS-7 levels, submitted by the Union during the term of a collective bargaining agreement, where the proposals do not concern matters covered by the agreement and the Union did not clearly and unmistakably waive its right to bargain on such mid-term proposals during negotiation of the agreement.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

WE WILL bargain with the National Treasury Employees Union on negotiable proposals concerning the staffing of the position of Internal Revenue Agent, GS-512, at the GS-5 and GS-7 levels, submitted by the Union during the term of a collective bargaining agreement, where the proposals do not concern a matter covered by the agreement and the Union did not clearly and unmistakably waive its right to bargain on such mid-term proposals during negotiation of the agreement.

                             ______________________________
                                       (Activity)

Dated:____________________By:______________________________
                                 (Signature)   (Title)

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

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director for 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]

---