Issues 16 through 39 follow:

14. ISSUE #16 (Union § 3 A 3)

What process will be used to resolve CTAP/CES disputes?

a. The Union’s Position

The Union proposes the following:

However, the parties agree that any dispute over CES/CTAP provisions not otherwise covered by the "Pre-RIF" dispute resolutions process, may be grieved (since it is not part of the RIF process) and that grievance will involve the following: A- the second step of the term contract grievance process will be waived, B- if the grievance is unresolved it will be appealed to Expedited Arbitration, and C- to the extent possible, all cases in an appointing office will be consolidated for purposes of arbitration before one arbitrator. It is only with mutual agreement that any of these provisions may be waived.

There is a need for an expedited process to resolve alleged violations of employees’ CES/CTAP rights because the denial of such rights "can rarely be remedied if the grievance is not corrected within a few weeks." If the employee is already off the rolls as the result of a RIF action, it is arguable that an arbitrator cannot order that the employee receive prospective or retroactive CES/CTAP status. Moreover, an alternative to the traditional grievance-arbitration process to resolve such matters is necessary because of the complexity of the issues involved in the CES/CTAP program, which is new, and which "the parties have customized" for their own purposes. Therefore, it would be best if one arbitrator builds expertise in this area, rather than permitting "dozens of arbitrators" to issue potentially conflicting rulings. These were the reasons the parties agreed to an expedited process under one of their pre-RIF agreements. Further, the Union offered the proposal at issue because it is unclear whether the parties will terminate their pre-RIF agreements as part of the resolution of the current impasse, or whether there will be grievable CES/CTAP issues not covered by these previous agreements.

    The Employer’s proposal would "cut off any opportunity to grieve and remedy" such disputes because the traditional grievance-arbitration process will not resolve such cases before the employees are taken off the rolls. Finally, the Employer’s jurisdictional argument that the subject of the Union’s proposal is "covered by" NORD IV is without merit. The "covered by doctrine" is "bounded by the parties’ practice," and they have modified their contractual grievance procedure in the past in dealing with the very same topic, RIFs. This signifies that NORD IV was never intended as a bar to further negotiations.

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s proposal is outside the duty to bargain because it involves a subject that is covered by the parties’ master agreement. More specifically, Articles 41 through 43 of NORD IV contain the parties’ grievance procedure and arbitration provisions. Article 43, in particular, sets forth those subjects that are appropriate for expedited arbitration, and CTAP disputes are not included. The parties have already negotiated a bifurcated dispute resolution procedure for resolving all matters, including CTAP disputes, in Section VI of their Pre-RIF Agreement which essentially referred them to the NORD IV procedures, unless the National President of the Union files a grievance under the Agreement, in which case an expedited process would be followed. There is simply no need for yet another dispute resolution process. The Union is incorrect when it suggests that the fact the Employer opted to negotiate over a different process in the Pre-RIF Agreement from what exists in NORD IV now compels it to negotiate over an additional dispute resolution procedure. To the contrary, case law provides that while it has discretion to negotiate over matters covered by NORD IV if it chooses, the Employer is under no legal obligation to do so.⁽¹⁸⁾

    The Arbitrator declines to adopt the Union's Proposal on the merits. The Employer has urged that Articles 41 through 43 of NORD IV, establishing an expedited grievance procedure, cover the subject of the Union's proposals. The Employer also points to the expedited process in the Pre-RIF agreement, Amendment III. The stated intent of the Union’s proposal is to continue the Amendment III procedure. Under these circumstances, the parties can use the Amendment III procedure which they both seem to think is workable. Otherwise, the Union will have to seek a ruling from the FLRA that its proposal is not "covered by" existing agreements, the FLRA having indicated that such issues must be resolved in that forum, on a case-by-case basis.

15. ISSUE #25 (Union § 5 A)

Must the Employer provide the Union with any requested information, including flow charts of reorganized work, prior to the implementation of the RIF? Must a RIF be held in abeyance while the parties negotiate on a reorganization? Will this agreement contain language concerning the status quo ante remedy of a Union claim of a unilateral change in conditions of employment?

a. The Union’s Position

The Union proposes the following:

Prior to the issuance of Summary Statements or any other action outlined below that further implements the RIF, IRS will notify NTEU of the positions and locations of positions that will assume the work of the employees whose jobs are being reassigned or reorganized pursuant to the RIF. The notice will include decisions about any changes in critical elements or performance standards as well as other training and qualifications that will be needed to do the work. It will also include a flow chart showing what work moved from what employee and position to what new employee and positions. If the work of a noncontinuing position will no longer be done, that will be noted for each position. For example, it will detail how the work of each of the 59 noncontinuing positions in Columbia now scheduled for a RIF will be done by the 41 employees scheduled to be hired in Greensboro to do the work. The parties will complete bargaining over that prior to the implementation of the reorganization or any RIF that might precede the reorganization. In other words, no employee will be released from his or her competitive level until the negotiations over where his or her work will go is complete and the employee can make an informed choice about whether or not to follow the work. Any changes made unilaterally prior to these negotiations will be fully reversed and returned to the status quo, consistent with law.

In July 1996, the Employer notified the Union that it had "decided to undertake a reorganization and as a result of that reorganization" it determined it would need a RIF. Since that time, the Union has requested information on the detailed plans of the reorganization, and the Employer "officially has contended that it does not yet have these details." The idea that IRS does not have the requested information is "nonsensical" for a variety of reasons, and "totally without credibility." The Union needs the requested information "to protect employee rights to avoid changes in the amount or scope of work they are expected to do without negotiations," and to allow it to identify what, if any, negotiable impact issues will arise "as the RIF mutates into a reorganization overnight." Therefore, given the Union’s good reasons for having the data, "and without any good reason from the Employer why it should not," its proposal should be adopted. The Panel previously addressed a "similar proposal from a union and ordered it be adopted."⁽¹⁹⁾ Moreover, in a more recent decision, the Arbitrator also "stated her agreement with the idea that the union should be given further information to ‘insure accuracy’."⁽²⁰⁾ In addition, the RIF should be held in abeyance until such time as the information is produced and negotiations are completed, and its "status quo ante remedy concept" also should be included, because "this reflects the policy of law." In this regard, a clear decision by the Arbitrator concerning "how the law will operate in this matter" would prevent future litigation before the FLRA "should the Employer foolishly believe that it can execute the RIF without bargaining over the reorganization that must be ready the morning after the RIF." It is to prevent the proliferation of cases before the FLRA on the same issue that the Union wishes to establish its right to the requested information as a matter of contract, even though it "probably can make an argument" that it is entitled to it under section 7114 of the Statute.

    With respect to the Employer’s nonnegotiability argument, the Arbitrator should reject it. Rather than imposing substantive restrictions on management’s right to lay off employees, under section 7106(a)(2)(A) of the Statute, the proposed wording is more analogous to asking for a cost study before a RIF or reorganization goes forward, which is negotiable under FLRA case.⁽²¹⁾ Finally, concerning this issue, as well as Issues #24, #26, and #30, the Employer mischaracterized the operation of the Union’s right to negotiate as the Employer laid out its time projected lines in the arbitration hearing. In this connection, there is nothing in the Union’s proposals on these issues which would "stop the beginning of the RIF nor any of its middle phases."

    b. The Employer’s Position

    The Employer offers no counterproposal. The information the Union seeks is equivalent to conditioning the implementation of the RIF on the completion of negotiations over the Agency’s organizational structure after the RIF and, therefore, violates management’s right to lay off employees.⁽²²⁾ The Employer also has no obligation to negotiate over any changes in critical elements and standards and training before it conducts the RIF because these matters are covered by NORD IV. The parties are negotiating locally over movement of work issues, not because of the RIF but because of the IRS’ need to complete the reorganization, and "there is no need to hold the RIF in abeyance until those negotiations are completed." The Employer has already given the Union the best information available on a variety of RIF-related subjects, and the requirement that it provide a flow chart showing what work has moved from what employee and position to which new employee and position, and to negotiate over such matters, "is absolutely ridiculous." Among other things, it is impossible for the Employer to negotiate such "specifics" prior to the RIF and completion of the reorganization. In this connection, the Union’s interpretation that the Panel addressed a similar union proposal in White Sands and ordered its adoption "is far too expansive." Contrary to its view, the information the Agency has already provided the Union with respect to this issue is consistent with what the Panel ordered in that case.

    The fact that the FLRA Washington Regional Office dismissed a Union-filed ULP charge involving a section 7114 information request on May 20, 1997, which was substantially similar to the Union’s current proposal for information, supports the Employer’s contentions regarding the data it has provided, and that it has fulfilled its bargaining obligations to the fullest. Finally, the part of the Union’s proposal which would make the matter of an appropriate remedy for changes in conditions of employment without completing negotiations a matter of contract "is unreasonable." It is inconsistent with the Agency’s right to make unilateral changes in emergency situations, nor is a status quo ante remedy warranted in every case. In this regard, NORD IV permits the Union to file institutional grievances where it believes that the Employer has made illegal unilateral changes prior to fulfilling its statutory obligations. It is more appropriate to allow an arbitrator to apply the same criteria the FLRA would on a case-by-case basis than to saddle the Employer with a status quo ante remedy in every circumstance.

    Section 5 of the Union Final Offer proposal is titled, "Notification of the Final Details of the Reorganization and Bargaining." Its subparts are coextensive with Issues #25 through #30. The Union position reflected in these proposals is that because a reorganization is the reason for the RIF, it is impossible to separate the two processes. This is because the reorganization not only dictates the designation of certain positions as non-continuing in the new agency configuration, it also dictates what kind of jobs remain for employees in the reconfigured agency and the terms and conditions of those jobs. Because during the RIF process, employees released from their competitive level, or impacted by a bump or retreat action are required to make decisions about whether to seek, or accept, other positions, it is only fair, urges the Union, that they know what these positions entail (what the work, schedule, location, etc., will be), all matters subject to statutory bargaining obligations. The Union, therefore, conditions the Employer's ability to proceed to RIF on the completion of bargaining over the reorganization. On the exact point when the "proceeding" would be held up, Section 5 A is internally inconsistent, but the only reasonable reading, contrary to the Union's suggestion, is that the Employer cannot proceed even to issuance of summary notices until bargaining is completed and agreements are in place over post-reorganization working conditions since the summary notice information it requires includes reorganization-related information.

    The Employer's argument that the way its management rights are conditioned in this proposal violates the Statute, cannot be resolved by this Arbitrator. There is no FLRA case decision that addresses the issues raised here in a manner favorable to the negotiability of the proposal. In NTEU and NRC, the Authority found non-negotiable a proposal barring implementation of a RIF "until reorganization resulting from the RIF is finally determined including completion of any necessary negotiation with the Union." The FLRA's conclusion was that the proposal impermissibly conditioned management's right to layoff employees on the right to determine the organization. The Union's arguments to distinguish NTEU and NRC (i.e., the Union here is not actually asking for the "final" reorganization details) miss the point of how Carswell limits the Arbitrator's authority. The Union must do more than distinguish FLRA case law. It must provide the arbitrator with an FLRA ruling on closely similar facts and issues which establishes the negotiability of its proposal. (See the discussion under Issue 12, above.) The Union has not done that because, the Arbitrator believes, there is no such ruling. The cases cited which deal with contracting out cost studies are not on point. The OEA and DOD case cited as controlling (an older case than NTEU and NRC) did not present the FLRA with the conjunction of a reorganization and a RIF, that is, the FLRA did not consider the implications for a RIF of a requirement to bargain to impasse on the reorganization where management maintains that it cannot finally determine the reorganization until after the RIF. The Union has put forward a set of proposals of untested legality, and to proceed with those proposals, it has no choice but to take them before the FLRA for a determination of their negotiability. For the above reasons, the Arbitrator must decline to consider the Union's proposal.⁽²³⁾

16. ISSUE #26 (Union § 5 B)

Will the agreement permit and contain a procedure the Union can use to negotiate over the numbers, types, and grades issues in the newly-reorganized offices once the RIF is implemented?

a. The Union’s Position

The Union proposes the following:

As part of those negotiations, the Union is free to submit proposals that address the numbers, types, and grades of employees that will be employed in the organizational subdivisions of the IRS after the RIF. This negotiations may include the use of any legal procedures that management used prior to the RIF. This bargaining right does not apply in those offices where management agrees to implement the transition plans that had previously been agreed to between the parties.

The proposed wording is merely intended to preserve the Union’s right to negotiate over section 7106(b)(1) matters once the parties commence negotiations "over the reorganization -- the triggering event for the RIF," negotiations which the Employer has successfully "evaded" up to this point. Such matters are too important to risk losing "because someone concluded that the ‘covered by’ defense removed the Union’s right to negotiate." Finally, the Union’s right to negotiate such matters "should be beyond dispute," as the Panel has addressed a similar issue and ruled, on the basis of FLRA precedent and the impact of Executive Order 12871, that they can be placed before it.⁽²⁴⁾

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s proposal is outside the duty to bargain because it interferes with management’s right to determine its organization and lay off employees, and because section 7106(b)(1) matters are negotiable only at the election of the Agency. With regard to the latter point, "now that the parties are at impasse, the Agency has declined to negotiate over this proposal." Any contention on the part of the Union that Executive Order 12871 requires the Agency to go to impasse over it must be rejected because the Arbitrator "lacks authority to enforce the Executive Order." In this regard, the Executive Order "did not amend 5 U.S.C. section 7106(b)(1) and convert permissive subjects of bargaining into mandatory subjects." Moreover, Section 3 of the Executive Order explicitly states, among other things, that it was not intended "to create any right to administrative review," nor do third parties have a private right of action to enforce obligations imposed on executive branch officials by executive orders unless they have some specific foundation in Congressional action. Further, the argument that the Union is not attempting to enforce the Executive Order "but simply asserting that the President has exercised the Agency’s discretion" has already been rejected by the FLRA.⁽²⁵⁾ Finally, "it makes no sense to negotiate over numbers, types, and grades on such a grand scale" in an organization such as the IRS which is "constantly changing for reasons unrelated to the current reorganization."

    The Arbitrator must decline to consider the Union's proposal. Contrary to the Union's assertion, the Panel has not applied Carswell to act on a proposal dealing with "numbers, types, and grades" except where there was a factual basis for concluding that management had made an election to bargain, not the situation here. There is no FLRA authority for the Arbitrator to apply to force a management election. Independently, the Arbitrator and the Panel lack authority to enforce Executive Order 12871. Further, this section does not stand alone, being linked to Section 5 A (Issue #25) which the Arbitrator has declined to consider because of unresolved negotiability issues.

17. ISSUE #27 (Union § 5 C)

Union Statement of the Issue:

Under what conditions will any "directed reassignments" occur?

Employer Statement of the Issue:

Will this agreement amend the provisions of Article 15 of the parties’ master agreement? Further, will the Employer be prohibited from making any directed reassignments until negotiations concerning a RIF and reorganization are completed?

a. The Union’s Position

The Union proposes the following:

Any employee who is given a "directed reassignment" order as part of this reorganization will not be reassigned or ordered to make a decision about the reassignment until all the negotiations called for under the parties’ term agreement are completed. In any case, the negotiations called for by the term agreement prior to implementation will be completed prior to any directed reassignment, unless the parties agree that those negotiation obligations are satisfied by these negotiations. Moreover, none of these reassignments may be made until the bargaining mentioned in Subsection A above is complete so the employee can make an informed choice.

The parties’ term agreement requires the Employer to complete negotiations over directed reassignments "before there is any directed reassignment of employees involved in the RIF." Thus, its proposal is intended to avoid any conflict between the term agreement and the midterm RIF agreement, and to make clear that nothing in the RIF agreement authorizes a change in the obligations set forth in NORD IV. Preventing the Employer from making such assignments prior to the time of the reorganization also makes sense because it would avoid the unnecessary expenditure of "Government funds and other resources." This is because the reassigned employee may have the right to move to yet another position or "even back to his old job," depending on what the parties negotiate. The adoption of its proposal should not "result in a major delay." In this regard, because it is also proposing to expedite the negotiations (Issue #30), the Union "should not be held accountable for any delay" if the Employer is unwilling to agree to such a procedure. Regarding the Employer’s two nonnegotiability arguments, both should be rejected. Article 15 of NORD IV specifically preserves the Union’s right to negotiate over directed reassignments prior to their implementation, which indicates that "the parties specifically bar the application of the ‘covered by’ doctrine" to the subject. Moreover, its proposal merely "mirrors" the wording of the contract and the Statute. To the extent the Employer "complains" that the proposal requires it to complete bargaining before implementing any change involving a directed reassignment, the FLRA has specifically held that a union may negotiate over a proposal that conditions the exercise of a management right on the completion of bargaining.⁽²⁶⁾

    b. The Employer’s Position

    The Employer has no counterproposal. What the Union proposes is covered by NORD IV, and also places substantive limitations on management’s rights to assign work and employees. In this regard, the parties have already negotiated a directed reassignment provision contained in Article 15 of NORD IV which clearly covers the situations proposed by the Union, and "the Agency has no obligation to negotiate another directed reassignment process with it." Furthermore, the part of the proposal which requires the Agency to delay reassignments until all of the adverse impact negotiations are completed is actually inconsistent with Article 15, as the "bargaining history surrounding" the pertinent section of that article shows that the Agency may reassign employees after the time periods specified therein, and then complete negotiations after implementation. In addition, the proposal is inconsistent with the Union’s proposal in Issue #29. It prohibits the Agency from making directed reassignments under Article 15 until after it completes negotiations over a number of matters raised in the Union’s proposal under Issue #25, while the proposal in Issue #29 prohibits the Agency from effecting an involuntary reassignment until the effective date of the RIF. Because it is unclear whether one of the proposals should take precedence over the other, or be read in combination, at the very least the Arbitrator should not impose them both.

    By requiring the Agency to complete negotiations over all those matters mentioned in the Union’s proposal on Issue #25, the proposal "places a significant and debilitating limitation" on its right to assign employees and, in turn, "may cause a severe disservice to employees." This is because the requirement to provide the Union with flow charts comparing the "old" and "future" organizations before it can conduct the RIF would prohibit the Agency from directly reassigning employees prior to the RIF. But the ability to reassign employees prior to the RIF, for example, by placing an "excess" employee into another position in another competitive area within the same commuting area, could completely eliminate the need for a RIF in the excess employee’s current competitive area. Under the Union’s proposal, the Agency would have to conduct the RIF and, perhaps, separate the excess employee, "a result which is hardly fair to either the Agency or to the employees."

    The Arbitrator declines to consider the Union's proposal. The last sentence of the proposal is linked to the Union's proposed Section 5 A which the Arbitrator has declined to consider due to questions about negotiability (Issue #25). With respect to the preceding sentences, the Employer has raised the argument that directed assignments are covered by Article 15 of the term agreement, obviating any duty to bargain the current proposal. The Union does not dispute the application of Article 15, asserting that its goal here is to make clear that the RIF agreement does not change the obligations that Article 15 imposes. The Arbitrator finds no need for such clarification, the IRS having committed itself in its arguments here to addressing directed assignment issues under the term agreement. The Union's proposal adds something to Article 15's stated requirements, however, which is a requirement that the impact-and-implementation bargaining required in that Article be completed prior to the reassignment. If directed reassignments are "covered by" Article 15 adding this requirement is inappropriate. Because the Panel's interpretation is that the FLRA reserves to itself "covered by" determinations, what cannot be avoided is the necessity of Union having this issue first addressed in that forum. In any case, having decided that the question of whether reorganization bargaining and decision-making can prevent the RIF from going forward is an issue for the FLRA, the Arbitrator does not find it advisable to consider the proposals here and in Issue #28 that really address the reorganization, not the RIF. The subsections of Section 5 are interrelated in such a way as to make severing the reorganization issues impossible.

18. ISSUE #28 (Union § 5 D; Employer § I G)

What procedures and negotiations, if any, will apply to the reassignment of an employee within a commuting area? Must negotiations be completed prior to implementation of a reorganization?

a. The Union’s Position

The Union proposes the following:

Any employee who is reassigned to another post-of-duty inside or outside her normal commuting area pursuant to the RIF will not be ordered to report until the parties have negotiated over the applicability of AWS and local flexiplace options to that newly assigned position. Additionally, the parties will negotiate over the implementation of a "telecommuting" program for these employees similar to the one that management has implemented for nonunit employees. Finally, the Union will be permitted to negotiate over where work will be done within the bounds of case law. All these negotiations will be complete prior to the implementation of any reorganization.

This proposal is designed to "integrate" negotiations over flexiplace, AWS, and other matters, required under NORD IV, "with the roll out of the RIF and reorganization." These matters are of great importance to employees leaving one job and moving into another, and should be addressed before the moves occur and their work lives are substantially disrupted. Again, the negotiations should not result in major delay, and the Employer can minimize the time involved by agreeing to the expedited negotiations procedure the Union is offering on Issue #30. Further, negotiations over telecommuting arrangements and where work is done would provide additional ways to "lessen the adverse impact" on employees affected by the RIF, and are consistent with various Presidential orders and actions supporting a family friendly workplace. Concerning the Employer’s nonnegotiability allegations: (1) it has misread the intent of the proposal, which "does nothing to interfere with what POD the position or employee is assigned to by the Agency," but merely preserves the Union’s contractual right to negotiate over flexiplace; (2) the subject of the proposal is not outside the duty to bargain under the "covered by" doctrine because the proposal "merely mirrors and implements in the context of the RIF the rights the parties have identified in the contract;" and (3) the phrase "within the bounds of law" preserves management’s right to determine "where the work will be done."

    b. The Employer’s Position

The Agency will comply with Article 23, sections 9 - 12 of NORD IV regarding flexiplace.

The parts of the Union’s proposal involving flexiplace and AWS are covered by Article 23 of NORD IV and also nonnegotiable because they interfere with management’s rights to determine its organization and to lay off employees. Under the terms of the proposed wording, an employee may never actually be required to report to a different post-of-duty since the reassignment would only be "on paper." Moreover, to the extent that its ambiguous wording addresses directed reassignments prior to the RIF, that subject is covered by Article 15 of NORD IV. On the other hand, if the proposal is directed to RIF assignments to other posts of duty, "it would prevent the Agency from fully effecting the RIF until the negotiations called for by the Union were completed." In this regard, it has the potential of "jeopardizing the bona fides of the RIF and subjecting the RIF to a reversal by a third party." If the current RIF bargaining is any indication, "negotiations could take a very long time," and provide certain employees with grounds for complaining that they were not properly bumped during the RIF process if other employees are still encumbering the same position while negotiations over flexiplace, AWS, or telecommuting are still ongoing.

    The portion of the proposal which would require negotiations over a "telecommuting program" to be conducted prior to the RIF or reorganization "is nothing more than a delay tactic." Telecommuting has nothing to do with the RIF, nor was the Union prevented from offering telecommuting proposals during the current negotiations. Finally, its proposal to negotiate over where the work will be performed "within the bounds of case law prior to the RIF and reorganization" should be rejected because the Union’s rights in this connection "are pretty much limited to such matters as on which floors of a building the work will be performed." The Agency’s entire RIF and reorganization should not be delayed "to negotiate over such minor subjects."

    For reasons stated with regard to Issues #25 and #27, the Arbitrator declines to consider the Union's proposal. Prior to this proposal being considered on its merits the FLRA must determine whether a proposal can require that impact-and-implementation bargaining concerning a reorganization be completed prior to effectuating a RIF. As the Union says in its prehearing brief, its purpose in this proposal is to "integrate" the two processes (RIF and reorganization) which is at the heart of the negotiability issue. In addition, NORD IV addresses AWS and flexiplace and the Employer acknowledges bargaining obligations over those subjects under the contract. To the extent that the Union is simply wanting to confirm the Employer's obligations under NORD IV, its language is unnecessary. Finally, as the Union has not opposed it (and it is unobjectionable on its face) the Employer proposal which states that it will follow language making plain a commitment to follow contractual terms on flexiplace is adopted.

19. ISSUE #29 (Union § 5 E)

Will involuntary reassignments be stayed until the completion of the RIF?

a. The Union’s Position

The Union proposes the following:

No employee who is involuntarily moved out of his or her competitive level or otherwise the victim of a RIF will be ordered to move prior to the completion of the RIF.

The adoption of its proposal is necessary to ensure that employees are not ordered to "leave" their competitive levels during the early rounds of the RIF reassignment process prior to its completion "throughout the office," and would prevent employees from suffering "the harm and hardships of moving" before it is certain that all of the moves are required. In this regard, employees are entitled to a certain number of days notice before they must leave their current positions and the Union seeks "to make that very clear." Its proposal is also modeled "on how the labor law would operate," i.e., preventing employees from being moved prior to the negotiated RIF execution date would help both parties to avoid grievances and unfair labor practice charges which eventually could result in "status quo ante or ‘retroactive effect’" orders.

    b. The Employer’s Position

    The Employer has no counterproposal. As it also stated in connection with Issue #27, the Union’s proposal is outside the duty to bargain because the subject it addresses is covered by Article 15 of NORD IV, and places substantive limitations on management’s rights to assign work and employees. In addition, its proposal under this issue, and the one under Issue #27, "are inconsistent with each other." It is also "unclear and makes no sense" because it only prevents the Agency from effecting involuntary reassignments when they are to different competitive levels. Thus, under the proposal an employee could be involuntarily reassigned to a position in the same competitive level at another post of duty 39 miles away, but the Agency would be prohibited from involuntarily reassigning the same employee to a position in a different competitive level, even though the position is "across the hall and in the same building." Beyond the fact that there is "very little logic" or purpose served by the proposal, it also would prevent the Agency from involuntarily reassigning any employee who is the "victim of a RIF." Because the parties would spend much of their time litigating the meaning of this ambiguous phrase, the adoption of the proposal would be counterproductive, and it should be rejected on its merits.

    The Arbitrator declines to adopt the Union's proposal on the merits. The meaning and import of this language, including the phrase "otherwise the victim of a RIF" is not at all clear and has not been elucidated by the Union. "Completion of the RIF" implies that no employee moves (by release from competitive level or by bump or retreat) until all employees move. After lengthy consideration of these proposals, there remain serious questions in the Arbitrator's mind as to whether this is workable. For instance, the Union never responded to the Employer's concern that an employee terminated because of a "bumping" action would have grounds to appeal the bona fides of the removal if no actual movement had occurred to displace the employee from his or her position. And how would the agency's work get done if a transfer of work had already occurred (and perhaps employees who formerly performed the work had departed through buy outs, retirement, voluntary reassignment, etc.) but employees could not be moved into new positions to perform the work? The Union implies that measures like telecommuting could take care of all contingencies, but did not establish that this would be feasible with regard to all, or most, of the specific positions involved in this RIF.

    Although the Arbitrator is resolving this issue on the merits, she notes that this provision is bound up with the issues concerning reorganization and Article 15 of NORD IV already discussed, issues that must be resolved by the FLRA.

20. ISSUE #30 (Union § 5 F)

What impasse process will be provided to the local parties to expeditiously resolve any negotiation disputes concerning topics raised in Section 5 A-E ?

a. The Union’s Position

The Union proposes the following:

The local parties will have no more than 45 days to negotiate over the above listed issues. If they are unable to reach agreement, even with assistance of the FMCS, their dispute will be referred to the national parties, who will then resolve it.

Because of "the Employer’s refusal to finalize plans for the reorganization," it is currently unclear whether the RIF will be delayed so that substantial bargaining over the reorganization can take place, or the two events can "be distinguished and clearly separated by a significant period of time." It is wise and benefits both parties, therefore, to expedite local bargaining created through NORD IV so that it is not permitted to "drag out" beyond 45 days. If local negotiators are unable to reach agreement during that time period, "the dispute would be transferred to the level of exclusive recognition where statutory processes and rights would control the progress of the bargaining."

    b. The Employer’s Position

    The Employer has no counterproposal. There is no need for the Union’s proposal because the Agency has no obligation to negotiate over (1) any of the proposals to which it refers, or (2) many of the issues, such as "numbers, types, and grades," and "telecommuting," etc., at the local level. With respect to the latter point, Article 47, Sections 2 and 4 of NORD IV provide that such negotiations will be at the National level. If the Union were "sincere" about reaching a comprehensive RIF agreement, rather than in delaying the RIF for as long as possible, it could have offered specific proposals on these matters instead of proposals requiring continued negotiations to be conducted and completed prior to the implementation of the RIF and reorganization.

    The Arbitrator declines to consider the Union's proposal since it is tied to adoption of the reorganization bargaining proposals elsewhere in Section 5, concerning which there are negotiability issues requiring resolution by the FLRA.

21. ISSUE #31

(a) Will the Union be given data it has listed to assess the adverse impact of the RIF on various protected classes as it moves through various stages? When will the data be provided? What will be the impact, if any, if the information is not timely provided? (Union § 6 A (minus last paragraph), B, and C; Employer § II B 1, para. 2)

a. The Union’s Position

The Union’s proposes the following:

Within 5 days of the implementation of this agreement, the Employer will provide to the Union the following data via a Lotus disk format:

1. A list of all employees who have been issued CES (or other "impact") letters. This list will show the race, national origin, gender, disability status (targeted and nontargeted), and age (+/-40) of these employees. It will further show this data by competitive area and level.

2. A list, based on the results of the "mock-RIF" showing those employees likely to be impacted by the RIF. This list will show the race, national origin, gender, disability status (targeted and nontargeted), and age (+/-40) of these employees. It will further show this data by competitive area and level. Finally, it will show the action taken against each impacted employee, i.e., terminated, downgraded, or remove from competitive level without termination or downgrade.

The data on each employee will be provided without names and in all other respects in a format similar to that provided to the union in the transmission of data in May 1997.

The Union will have the data at least 5 workdays before it has to make a choice between MSPB or grievance procedures or the date of that choice will be appropriately extended so that the Union has the data for at least 5 workdays before making the choice.

Simultaneous with the issuance of any specific Notice of a RIF, the Employer will provide to the Union the following data via a Lotus disk presentation:

1. A list showing those employees who received Notices of a RIF. This list will show the race, national origin, gender, disability status (targeted and nontargeted), and age (+/-40) of these employees. It will further show this data by competitive area and level. Finally, it will show the action taken against each impacted employee, i.e., terminated, downgraded, or remove from competitive level without termination or downgrade.

The data on each employee will be provided without names and in all other respects in a format similar to that provided to the Union in the transmission of data in May 1997.

Once the process of assigning employees has been completed, the Employer will provide to the Union the following data via a Lotus disk presentation.

1. A list showing those employees terminated, downgraded, removed from their competitive level without termination or downgrade or otherwise impacted. This list will show the race, national origin, gender, disability status (targeted and nontargeted), and age (+/-40) of these employees. It will further show this data by competitive area and level. Finally, it will show the action taken against each impacted employee, i.e., terminated, downgraded, or remove from competitive level without termination or downgrade.

The data on each employee will be provided without names and in all other respects in a format similar to that provided to the Union in the transmission of data in May 1997.

The data requested by the Union is necessary primarily so that it can determine whether it has "an actionable EEO case which will impact" its selection of either "the grievance-arbitration or MSPB route for any appeals." It has been concerned about the potential adverse impact of the RIF on protected classes since the "first moments of the negotiations," but was able to obtain previously requested data from the Employer only "under the written threat of a TRO." The Union’s preliminary analysis of this data showed that the RIF plan creates statistically significant evidence of inordinate adverse impact on disabled employees, women over 40, and Afro-American employees. For this reason, the Union should be given the additional data it is requesting "to track this impact through each stage of the RIF." Moreover, the Employer has already demonstrated that it can meet the proposed 5-day time period; whatever inconvenience the Employer would suffer is "outweighed by the importance of avoiding discriminatory results with this RIF."

    The Employer’s only argument for not providing such data during the various stages of the RIF has been on the basis of relevance. While the parties and "various courts" hold different positions regarding this legal issue, the Arbitrator "should not try to step in the middle of that judicial controversy" but "should endorse the full and open use of data, leaving it to the courts to decide later, if ever, what they consider to be relevant." The primary advantage of providing data throughout the various phases of the RIF is to permit the Union more time to "begin an investigation of the other facts behind the statistics" if it finds adverse statistical impact, something which the courts generally require if a case of discrimination is to be made. Moreover, it is hoped that by continually demonstrating that the RIF would have an inordinate impact on protected classes someone within IRS management will modify the RIF plans to avoid or minimize the impact. Finally, the penalty it proposes if the data is not provided in a timely manner is "mild," and "directly linked to the harm" the Union would suffer.

    b. The Employer’s Position

    The Employer proposes the following:

The Agency will conduct an analysis at the conclusion of the RIF regarding the impact of the RIF on women, minorities, and handicapped employees. This analysis will be shared with NTEU upon completion.

The Union’s proposal that the Agency provide it with certain "RNO data" is "intricately related" to Amendment Three of the Pre-RIF Agreement, its two-step RIF notice proposal under Issue #66, and its proposal under Issue #31(c). Since the Arbitrator should reject the Union’s proposals on the latter two issues, "she should likewise reject the Union’s various requests for RNO data." In addition, this information may be requested under section 7114 of the Statute, so it is unnecessary to include the Union’s proposed wording, "with all its problems and pitfalls," in this RIF Agreement.

    The Arbitrator adopts the Union's proposal. The Employer does not maintain that the information to be produced is unavailable or too burdensome, and concedes that it could be the subject of a proper information request under Section 7114 of the Statute. The essential difference between the Union and Employer proposals on RNO data concerns timing. The Arbitrator can see value in the Union having access to impact data at the RIF notice point, rather than at the end point of the RIF. There is an opportunity to propose measures that would alleviate any adverse impact that might appear in the data. The Employer's proposal could be read to bar information requests even under Section 7114, prior to the time it provides in its language. The Arbitrator notes her understanding that the concept of "impacted," used in the Union proposal, is the meaning given to that term by the parties in their pre-RIF agreements.

(b) Will the Union be permitted to submit a comment to IRS addressing how potential adverse impact of the RIF on a protected class may be minimized or avoided? Will the IRS be prohibited from issuing any Summary of Statements or Notices of RIF letters until the Union has had an opportunity to comment? (Union § 6 A, last paragraph)

a. The Union’s Position

The Union proposes the following:

The Union will be given up to 10 workdays after it has received the data in useable format to submit a comment to IRS which addresses how the potential adverse impact of the RIF on a protected class may be minimized or avoided. IRS will not issue any Summary Statements or Notice of RIF letters until the Union has had an opportunity to comment.

Requiring the parties to explore ways to redesign the RIF to avoid or minimize adverse impact on protected classes "flows from the requirement of the Uniform Guidelines on Employee Selection Procedures," a Government wide regulation found at 29 C.F.R. 1607.3(B). Such an exchange would not be a negotiation, nor would the Employer be bound by any of the Union’s suggestions. Nevertheless, the Employer’s reactions are likely to be affected by its knowledge that the media and Congress might ask "why it has chosen to ignore recommendations that would fix any discrimination problem." Sending IRS a message that "it is free to refuse to meet with the Union about this topic," on the other hand, would set up a situation where its only alternative may be to use the media, Congress, and other groups "outside of NTEU" founded on protected class status, to get its points across. This is "hardly . . . the best approach."

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s proposed wording is linked to the portion of its proposal under Issue #31(a) concerning the data it is requesting from the Agency, and would require the cessation of the processing of RIF or summary statement notices if the CES and impact information reveals a disparate impact. Since the Union’s proposal under Issue #31(a) should be rejected, so should this one. Moreover, the Union does not need a specific proposal to engage the Agency in a dialogue should the information reveal a disparate impact because it is "always free" to discuss alternative means of minimizing the adverse impact on protected classes.

    The Arbitrator adopts the Union's proposal. Ten days for commenting on the RNO data provided is a modest delay in the RIF timeline. As indicated with respect to Issue #31(a) the Arbitrator sees value in early discussions between the parties should information appear in the RNO data suggesting an adverse impact.

(c) If the data show disparate impact on one or more protected classes at the time the Employer issues Notice of RIF letters, will the Employer be required to simultaneously solicit employee interest in moving to other competitive areas if they are provided reasonably similar positions and moving expenses? If so, will data showing which employees would be willing to move be provided by the Employer to the Union? (Union § 6 D)

a. The Union’s Position

The Union proposes the following:

If the data shows there is a disparate impact on one or more protected classes at the time the Employer issues Notice of RIF letters, IRS will simultaneously solicit employee interest in moving to any other competitive area. The solicitation will ask all impacted employees if they would be willing to move to another competitive area if IRS provided a reasonably similar position and moving expenses. The data will be collected from each impacted employee and associated with other RIF-related computer files so that NTEU can receive a list by race, national origin, gender, disability status (targeted and nontargeted), and age (+/-40) which shows which employees would be willing to move among those who are adversely impacted.

Its proposed wording would help the parties deal "with the possibility that the data will show a statistically adverse impact on one or more protected classes," and is yet another instance where a Union proposal creates a "win-win" situation. Although the Employer would be under no obligation to do so, if the responses of employees in protected classes showed that many "could be retained if IRS allowed them to move to vacant positions that would otherwise go unfilled during the RIF, we would expect IRS to react accordingly." In this regard, it is "totally irresponsible" for the Employer to maintain "an ostrich-like position" on these civil rights issues and not assess any damage until it is done and people are "out the door." With respect to the Employer’s reference to the Supreme Court’s Adarand affirmative action decision, that holding does not apply in the circumstances which pertain here because: (1) the Union is soliciting interest in moving from everyone in the RIF, not just from protected class members, and (2) the proposal "does not carry with it any automatic benefit or personnel action." Finally, granting it access to the information it is requesting is reasonable because it is entitled to the data anyway, and it would prevent the Union from having "to arrange for some other outside source" to intervene on its behalf.

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s proposal, on the other hand, is "unclear, outside the duty to bargain, contrary to law, and unnecessary." If the "impacted employees" whose interest is to be solicited includes any employee reassigned or downgraded, as opposed to those who have been RIF-separated, "it makes little practical sense to solicit their interest in and move them to another position elsewhere in the Agency." The proposal also violates management’s rights to assign employees and make selections by requiring it to fill vacancies and completely eliminating its discretion not to do so, nor is it an appropriate arrangement.⁽²⁷⁾ Further, even if the proposal only applies to vacancies the Employer intends to fill, it probably would be contrary to law because the selection of protected class employees for vacancies is, in effect, "an affirmative action program."⁽²⁸⁾ And finally, because of Amendment Three and the Pre-RIF Agreement, all employees, including those in protected classes, have been given ample opportunity to move to continuing vacancies elsewhere in the IRS at the Employer"s expense. There would be "little benefit" in providing employees with yet another opportunity to move.

    The Employer's non-negotiability allegations are not well founded given the plain wording of the proposal which is consistent with the Union's explanation that the proposal does not mandate assignment of employees but only requires the gathering of information that might be useful in any efforts that might be taken to respond to data showing disparate impact on protected classes of employees. The Employer raises a warning flag about any measures that would give protected class employees preferential treatment in ameliorative efforts. Nothing in the proposal as written does that (the language calls for soliciting the views of all impacted employees) although questions in that regard could be relevant at any later stage when the information is used. Beyond these legal arguments, the Employer's objection to the Union's proposal is that it is pointless because any employee willing to move will have already done so through the various pre-RIF processes. The Arbitrator's concern is a different one, namely, that the solicitation will suggest to employees that they have rights of consideration or assignment apart from what is provided for in the pre-RIF and RIF agreement.

    A proper use of the information to be gathered under this proposal that the Arbitrator can understand⁽²⁹⁾ is to better enable the Employer and Union to assist impacted employees through the existing avenues by providing them with definitive knowledge of who is willing to move, and where. On that basis, the Arbitrator adopts the Union's proposal, but with the understanding that employees solicited under this language will be advised in plain language of the purpose of gathering the information, and of the fact that no right of assignment is given by this contract language, and that placement opportunities are those otherwise provided in the RIF and re-RIF agreements.

22. ISSUE #32 (Union § 7A; Employer § II A)

What rules will apply to the definition of a commuting area and "separate administration" for purposes of defining competitive areas?

a. The Union’s Position

The Union proposes the following:

Competitive Areas. The Employer will establish the competitive areas and will provide a copy of this information to the Union. In so doing, it will use commuting areas that are uniform with other commuting area decisions it has made, e.g., to establish reimbursement rules for daily travel outside a commuting area to reassign employees for other purposes, etc. If the competitive area is something other than nationwide for any and all RIF actions, the Employer agrees it will be defined consistent with all laws and that a separate "administration" is defined, consistent with MSPB precedent, generally as that portion of the organization under separate mission requirements, appropriations, and personnel rules, policies, and formal procedures relating to promotion, performance, discipline and related personnel matters.

Given the legal restrictions on its right to negotiate over the subject of competitive areas, the Union seeks clear wording in the contract regarding some of the rules that apply in their selection. In this regard, there is evidence that the parties will disagree over how "uniformly" the Employer has drawn the boundaries. Instead of waiting until the Employer has committed itself to designating its competitive areas, the adoption of its proposal would highlight in this agreement the regulatory obligation under 5 C.F.R. 351.201© "that all RIF decisions must be uniformly applied." Similarly, since the term "separate competitive area," which is found in the current regulations, "is hardly a commonly used one in the Federal workplace," it would be helpful to all concerned if the administrators of the agreement are made "aware of the OPM interpretation," as set forth in relevant MSPB case law. The Arbitrator should give no credence to Employer allegations that its wording is nonnegotiable because the proposal has been revised "to paraphrase the holdings of MSPB as to what constitutes a separate administrative area."

    b. The Employer’s Position

    The Employer proposes the following:

Competitive Areas. The Employer will establish the competitive areas and will provide a copy of this information to the Union.

To the extent that definitions contained in the RIF Agreement differ from those in the Government wide RIF regulations, it would violate the regulations. This is why the RIF Agreement should not include definitions of competitive area and commuting area other than those already contained in the regulations. The regulations, however, do not define "separate administration." That definition has been developed through MSPB case law.⁽³⁰⁾ The definition of "activity under separate administration" supplied by the Union, on the other hand, is "incorrect," and an attempt to get through the "back door" what it cannot negotiate directly, a nationwide competitive area. This is because the Union’s definition is narrower than required by the regulation, and many of the Agency’s personnel programs regarding things like discipline, performance management, and promotions are national in scope. Unlike the term "separate administration," the RIF regulations do provide a definition of "local commuting area," so the RIF Agreement should not contain a separate and different definition. The Employer would have "little protection" when defending a RIF appeal if it argued that it defined commuting area consistent with the RIF Agreement, rather than the RIF regulations.

    The Arbitrator adopts the Employer's proposal. Although the Union maintains it is doing no more than restating controlling OPM and MSPB standards for establishing competitive areas, in fact its language is not a complete or accurate description of regulatory standards and is therefore misleading. It is preferable to adopt the Employer language which, though uninformative as to the criteria for competitive areas, is accurate.

23. ISSUE #33 (Union § 7 B)

What adjustments, if any, will be made where there is more than one appointing office within a competitive area?

a. The Union’s Position

The Union proposes the following:

If the Employer selects a competitive area that is co-terminus with commuting areas and appointing office, all employees in those offices who are selected for RIF in the first round will be made aware of vacancies in other IRS appointing offices within the commuting area by a formal written statement that lists all vacancies in the commuting area. This will be done at the time the employee receives his Notice of RIF. The notice will also contain an explanation of how the employee could apply for or otherwise compete to fill the vacancy.

The proposal is intended to address a problem with the way in which the Employer has chosen to draw its competitive areas. In certain parts of the country there are different appointing offices within the same commuting area, "sometimes in the same building or a few subway stops" from one another. Thus, due to the "callousness with which IRS is designing this RIF to avoid any inconvenience to management," employees may be forced to leave Government service even though there may be vacant positions available within the same commuting area. The disruption the Employer contended would occur if it designed its competitive areas to avoid such an outcome has never been substantiated, nor has it rebutted the Union’s argument that it would be far more disruptive for the Agency to hire a new employee off the streets when a RIF’d experienced employee was only a short distance away. Requiring the Employer to inform RIF’d employees in areas with overlapping competitive areas of any vacancies and how to apply for them is "the least IRS can do to make up for what employees see as a nonsensical drawing of boundaries that caused them or co-workers to lose jobs they otherwise would not have."

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s proposal "makes little sense" because it provides a benefit only to employees released in Round 1 of the RIF, who are not necessarily the employees who will eventually be separated, "while leaving employees who will be RIF-separated with nothing." In addition, because the Union cannot legally make the Employer fill vacancies, the proposal simply constitutes a notice requirement which provides "no real benefit" to the designated employees. Next, if an agency determines to fill vacancies during a RIF, 5 C.F.R. 351.201(b) requires that it do so using the bump and retreat process. The Agency intends to fill vacancies within the competitive area undergoing a RIF during Round 2 as bump and retreat assignments, so "it will not be announcing such vacancies." As a consequence, it will do little good to inform Round 1 employees of these vacancies if they cannot compete for them. Finally, any vacancies that remain after Rounds 1 and 2 of RIF competition will be offered to eligible employees "in lieu of separation." In fact, the Union has agreed (in Issue #61) to the Employer’s proposal in this area which, consistent with MSPB case law, specifies that such offers must be made in retention order. Thus, requiring the Agency to inform only Round 1 employees of the vacancies would be "illusory" since they cannot apply or compete for positions which must be assigned in retention order.

CONCLUSIONS

    The Arbitrator declines to adopt the Union's proposal on the merits. This is another effort by the Union to counter the effects of the competitive areas drawn by the Employer. (See discussion under Issue 12.) The problem is that the proposal is meaningless and worse, creates false hopes and confusion because it suggests to employees that they can achieve selection or assignment to vacancies during the RIF process through some avenue not prescribed in the RIF process when that is not the case. OPM rules are clear that during a RIF, vacancies can only be filled pursuant to RIF rules. That is, vacancies have to be kept as bumping or retreating opportunities for employees in the competitive area of the vacancy who are released from their competitive level. Beyond that, if the vacancy is not filled through bump or retreat, the parties here have agreed to a provision for assignments in lieu of separation which makes any vacancies within a commuting area (which might include several competitive areas) available to employees slated for RIF separation (if they qualify under the terms of that agreement.) As a consequence, vacancies will not be filled at the time pinpointed in this proposal by employees outside of the competitive area where the vacancy is located and ineligible for bump or retreat rights. This proposal raises the concerns express by the Arbitrator on Issue #10 about Union proposals that on the surface appear beneficial but carry a potential to worsen the RIF's impact for some employees that has not been adequately addressed.

24. ISSUE #34 (Union § 7 C; Employer § II B 1)

How shall the parties define competitive levels?

a. The Union’s Position

The Union proposes the following:

Competitive Levels. Employees compete for retention in their competitive levels during the first round of RIF completion. A competitive level consists of all positions in a competitive area which are in the same grade (or occupational level) and classification series.

On this issue, "neither party seems to have the most technically accurate language on the table." The Union prefers its formulation to the Employer’s because "it allows for the more detailed issues that IRS includes from the current RIF regulations to be determined by the regulations themselves." This is important because final modifications to OPM’s current regulations "are due out any day now," and if they are issued before an agreement is signed and conflict with what IRS has proposed, the parties will have problems determining "what words should be used for this portion of the agreement."

    b. The Employer’s Position

    The Employer proposes the following:

Competitive Levels. Employees compete for retention in their competitive levels during the first round of RIF competition. A competitive level consists of all positions in a competitive area which are in the same grade (or occupational level) and classification series and which are similar enough in duties, qualification requirements, pay schedules, and working conditions so that the incumbent of one position could successfully perform the critical elements of any other position upon entry into it, without undue interruption as defined as in 5 C.F.R. § 351.203 and without any loss of productivity beyond that normally expected in the orientation of any new but fully qualified employee.

Unlike the Union’s proposal, the Employer’s includes the highlighted wording which is "the same as that contained in the RIF regulations." By excluding this wording, the Union’s definition of competitive level, in effect, would prohibit the Agency from breaking down a job series and grade into more than one competitive level and, for example, would require a Spanish-speaking GS-11 Taxpayer Service Representative (TSR) to be in the same competitive level as a non-Spanish-speaking GS-11 TSR, even if the non-Spanish-speaking employee could not perform the duties of the Spanish-speaking position without undue interruption, as defined in the regulations. Consequently, placing too many different positions into the same competitive level increases the chances that appeals of RIF actions may be sustained on the basis that an employee was improperly displaced by another employee who should not have been placed within his or her competitive level.⁽³¹⁾ Conversely, adoption of the Employer’s proposal would decrease the likelihood of reversal of RIF actions on such grounds. Finally, at the arbitration hearing the Union suggested that the Agency could get away with having only one competitive level per series "if it sufficiently manipulated the personnel system." When asked to justify its position, it responded that doing so "would eliminate its need to explain the peculiarities of the competitive level system "to unit employees." This is "hardly grounds" for imposing its "legally deficient proposal."

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal. As with the previous issue, the Union's proposal omits critical content in the governing regulations defining competitive levels and creates the erroneous impression that grade and series alone are determinative, which is not the case. The Arbitrator is cautious about an implicit Union assumption that it best serves employees to tilt the contract language in favor of broader competitive levels, noting the MSPB RIF appeal cases where employees for whom a narrow competitive level was more beneficial to their job security raised valid claims against their agencies if RIF rules were not observed in drawing the competitive levels.

25. ISSUE #37 (Union § 7 E, para. 1, sent. 1; Employer § II D)

Will this agreement provide specific language from Government wide regulations describing how performance will be credited or shall the Government wide regulations merely be referenced?

a. The Union’s Position

The Union proposes the following:

Credit for Performance. An employee’s entitlement to additional service credit for performance as described in section D herein shall be based on Government wide rules and regulations as well as law, with any conflicts resolved appropriately.

Because OPM has proposed substantial revisions in how performance credits are to be assigned to determine RIF retention scores, adoption of the Employer’s proposal, which incorporates the requirements of the current regulations, could result in an apparent conflict between the contract and any revised regulations dealing with this subject. While experienced Federal sector labor relations practitioners would understand that if the revised regulations are issued before the RIF agreement is implemented, the IRS wording becomes unenforceable, under section 7116(a)(7) of the Statute, its proposal would permit the regulations to change without giving rise to such conflicts. This is particularly important if the Union chooses to take appeals to MSPB rather than the grievance procedure because employees and their representatives, who may include private attorneys less versed in the Federal sector, would not "have to work their way through an apparent conflict between the contract and the regulations." Finally, as with Issues #41, #42, and #43, the Union’s proposal should be adopted because allowing the most current regulations to control permits "the best and most current public policy to operate," and avoids the potential for more litigation between the parties if new OPM regulations are "prescribed" before the Arbitrator imposes the decision or the parties get around to actually signing and approving it.

    b. The Employer’s Position

    The Employer proposes the following:

Credit for Performance. An employee’s entitlement to additional service credit for performance as described in section D herein shall be based on the employee’s three most recent performance ratings of record received during the 4-year period prior to the cut-off date described below in section 1.

Its proposal is simply a restatement of the requirements contained in 5 C.F.R. 351.504(b)(1) regarding the matter of performance credit. Although the Union’s proposal is not "incorrect," it is also "not very informative to the average employee." The Employer’s proposal should be adopted, therefore, because it provides employees with substantive information on how many and which performance appraisals are used to determine retention standing, and would not require them to "scamper" to find the applicable Code of Federal Regulations provisions. Moreover, the Agency’s personnel system and automated RIF software are "not prepared to make a swift adjustment to accommodate" the new RIF regulations recently proposed by OPM. Adoption of its proposal, therefore, permits it to take advantage of section 7117(a)(7) of the Statute. Employees would suffer little harm if the current regulations are incorporated into this agreement because NORD IV expires on June 30, 1998, and the parties will be negotiating RIF during term negotiations, and be required to incorporate the new regulations into the RIF article. The Agency, on the other hand, "would be unable to conduct the current RIF if the new regulations are published before RIF notices were issued."

    Both parties, and the Arbitrator, have been placed in a difficult position by what, we assume, is the imminent adoption by OPM of revised RIF rules that change certain aspects of how performance is credited for retention standing purposes. The Union's proposal here is designed to take advantage of the revised rules which provide additional flexibility to agencies in some areas. The Employer, on the other hand, locks in current rules to avoid the delays that would be created if OPM's new rules were issued before the RIF is over, and the parties were governed by the Union's language. It would have to stop the RIF, in process, and redo the retention registers according to the new OPM rules, a task it presents as complex given its computer programs, and as possibly incorporating bargaining with the Union. Because of the uncertainty about the timing of the OPM revisions, and the long pendency of this RIF, the Arbitrator is persuaded that the Employer's proposal on this and several issues following (#37, #41, # 42, and #43) is the preferable approach for bringing this RIF to conclusion in the event that OPM does not act before this agreement becomes effective.⁽³²⁾ The Employer's proposal on this issue is, therefore, adopted.

26. ISSUE #38 (Union § 7 E, para. 1, sent. 2)

Will this agreement make clear that the Employer is not released from its obligation to provide employees appraisals in accord with all the terms of the master agreement?

    a. The Union’s Position

The Union proposes the following:

Nothing in this agreement releases the Employer from any contractual obligation to provide an appraisal for each of the last 3 years for unit employees prior to the RIF.

Its proposal is necessitated by the parties’ differing interpretations of regulatory requirements, specifically, OPM regulations prohibiting retroactive employee performance evaluations. Under the Employer’s interpretation, "IRS managers are better off not doing any appraisals because once IRS enters a RIF situation the Agency is immune from challenge based on an error in the appraisal." This allows it to bypass several regulatory obligations that otherwise would limit its flexibility in this area. The Union intends to challenge the Employer’s reading of the regulations "at an appropriate time." Meanwhile, however, its proposal should be adopted to make it clear that nothing in the midterm RIF negotiations alters whatever NORD IV requires in the way of annual appraisals. In this regard, although "it is beyond dispute" that the Arbitrator is without authority to alter the term agreement, the inclusion of its wording would clarify this in the RIF Agreement. Finally, because its proposal "does not impose any obligations on the Employer," i.e., it does not require that retroactive appraisals be done, the Employer’s nonnegotiability arguments are without foundation.

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s proposal, however, is nonnegotiable because it is contrary to Federal law and Government wide regulations. In effect, it would require the Agency to provide retroactive appraisals to any employee who did not receive three annual performance ratings during the previous 4-year period. Because this would prevent employees from receiving "presumed" Fully Successful ratings for any missing appraisals, it directly violates the requirements of the RIF regulations at 5 C.F.R. 351.504. Moreover, "there is no authority permitting agencies to retroactively assign a rating of record when none was originally given," and it is highly problematic to assume that the Agency could recreate an appraisal, particularly if the employee’s supervisor is no longer employed by the Agency. Because it would have been more appropriate for employees with missing appraisals to have protested at the time they were due, imposing the proposal also would amount to permitting employees to file untimely grievances. Significantly, the Union’s explanation of what its proposal means is inconsistent with what it actually states, and the Arbitrator should not impose a proposal based on a statement of intent that does not comport with the proposal’s wording. Finally, rejection of the Union’s proposal for the reasons stated would not prevent it from raising the argument, during an appeal of a particular RIF action, that the Agency violated NORD IV by failing to provide timely appraisals. Both parties could then debate the merits of the Union’s position, but this should occur only after the RIF Agreement is imposed on them.

    The Arbitrator adopts the Employer's proposal for the reasons provided concerning Issue #37. The Employer proposal states the current, controlling requirements of OPM regulations for crediting missing ratings. The Union's proposal is unnecessary to insure the viability of existing contract provisions concerning performance appraisals. The Employer agrees that in the proper forum the Union remains free to urge its position has to how those contractual obligations interface with the RIF rules.

27. ISSUE #39 (Union § 7 E, para. 2, sent. 1; Employer § II D 1)

What shall be the cut-off date for the use of appraisals in determining retention standing?

a. The Union’s Position

The Union’s proposes the following:

In accordance with regulation, a cut-off date of 90 days prior to issuance of the specific notices will be used. Performance appraisals due after that date will not be used for retention determination purposes.

Under its "win-win" proposal, the Employer would be required to consider appraisals completed as recently as 90 days before RIF notices are issued. Its adoption would not risk delaying the RIF, since the most recent evaluation year closed in June and the Employer’s own regulations require managers to complete and have them on the data base within 2 weeks of the end of the period. More recent appraisals should be used because: (1) according to data provided by OPM, in comparison with other agencies, the evaluation system negotiated by the parties "is highly effective at distinguishing different levels of performance," and the demonstrated advantages of the NTEU-IRS system "should not be lost due to the operation of a rule of convenience for a few managers;" (2) job changes over the years often make such appraisals the only evaluation they have in their current position; (3) IRS has many missing appraisals, which means that using as many of this year’s evaluations as available for RIF purposes would permit "presumed" Fully Successful scores to be replaced by actual scores; and (4) it would reduce confusion in the bargaining unit. With respect to the latter point, adopting the Employer’s proposal could lead to "absurd situations," such as employees who have just received cash performance awards having high evaluation scores ignored in the RIF calculation. Its proposal also is inconsistent with its final offer on Issue #44, where it makes clear that it is willing to accept updates to employee qualifications until the 30th day before the issuance of RIF notices.

    b. The Employer’s Position

    The Employer proposes the following:

In accordance with 5 C.F.R. 351.504(b)(2), a cutoff date of 180 days prior to the issuance of RIF notices will be used. Performance ratings received after that date may not be used for retention determination purposes. Early appraisals will not be accepted.

The purpose of the RIF regulations in question is to provide an adequate amount of time for an agency to determine an employee’s retention standing so that it does not have to make constant adjustments based on the daily receipt of appraisals. In this connection, the Employer’s proposal for a 180-day cut-off period (as opposed to 90 days), and to base the date on the time the appraisal is received (rather than due), is more reasonable than the Union’s. The longer period would reduce the risk of error by permitting the Agency an adequate amount of time to verify its employees’ performance records, and provide rating officials with less of an opportunity to manipulate evaluations so as to affect retention standing. Tying the cut-off date to when appraisals are received is more workable because it would provide a specific point in time for the Agency adequately to determine retention standing. Under the Union’s proposal, on the other hand, the Employer theoretically would have to accept appraisals right up to the date it issues RIF notices as long as they were due before the cut-off date, "and defeats the very purpose for permitting agencies to establish a cut-off date. Finally, because the Union is silent on the issue of whether early appraisals would be accepted, "the Agency assumes that the Union accepts" its proposal on this portion of the issue.

    The Arbitrator adopts the Union's proposal. The Arbitrator believes it comports with the public policy that favors consideration of performance in such actions as RIFs that employees have their recent performance considered for retention standing credit, which is more likely under the 90-day time period. As to the difference in the proposals between "received" and "due," the Arbitrator appreciates the Union's argument that it is fair to count appraisals "due," not received, to avoid a manager's delay or some other factor outside of the employee's control preventing consideration of recent performance that could improve an employee's RIF standing. The difficulty is that the OPM RIF regulations are clear that in order to be used for retention standing credit, appraisals must be "on record," that is, in the receipt of the agency officials preparing the retention registers. ("To be creditable for RIF purposes, ratings must have been issued to the employee, with all appropriate reviews and signatures, and must also be on record." OPM Module 3, Unit A, Section 15 (9).) In allowing agencies to establish a cutoff date in this context, OPM states that "[a]fter the cutoff date, no new annual performance ratings will be put on record and used for RIF purposes." Id. at section 15(3). At the same time the regulation states: "Agencies must ensure that ratings are issued in accordance with established schedules and forwarded to the appropriate office on a timely basis." Id. at section 15(9)(b). There are IRS and Treasury policies prescribing time limits for managers to complete performance appraisals and enter them into the computer system.

    In light of the above, the Arbitrator adopts the Union proposal but notes that by its terms and the Arbitrator's intention, it does not directly conflict with OPM rules and that it must be applied consistent with the other provisions of this agreement concerning credit for performance.

ENDNOTES

18.Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. Federal Labor Relations Authority, 962 F.2d 48 (D.C. Cir. 1992).

19.Department of the Army, White Sands Missile Range, White Sands Missile Range, New Mexico and Local 2049, National Federation of Federal Employees, Case No. 93 FSIP 105 (June 29, 1993) (White Sands), Panel Release No. 346.

20.Department of the Navy, United States Marine Corps, Marine Corps Air Station, Cherry Point, North Carolina and Professional Airways Systems Specialists, Case No. 95 FSIP 25 (June 26, 1995), Panel Release No. 375.

21.National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566, 594 (1988) (NRC).

22.NRC, 31 FLRA 566, 615-616 (1988).

23.The Union in its posthearing brief invited the Arbitrator to sever any problematic portions of Sections 5 A, B and F and impose the remaining language but made no suggestion as to what to keep. The only part of these proposals that does not implicate the negotiability issues that the Arbitrator has decided are for the FLRA, is the first sentence in 5 A concerning information to be provided to the Union. The Employer maintains that it has informed the Union about the "positions and locations of positions that will assume the work of the employees whose jobs are being reassigned or reorganized pursuant to the RIF," and the FLRA General Counsel dismissed an unfair labor practice complaint alleging a failure by the IRS to provide reorganization information to the Union. Based on the above, the Arbitrator finds no purpose served in severing this single sentence.

24.The Union relies on Department of Veterans Affairs, Palo Alto Health Care System, Palo Alto, California and Local 2110, American Federation of Government Employees, AFL-CIO, Case No. 96 FSIP 1 (March 20, 1996), Panel Release No. 385, to support its contention.

25.U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, Case No. WA-CA-40743 at 11-12 (July 9, 1996) (ALJ Opinion).

26.Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 740-41 (1987).

27.The Employer cites numerous FLRA cases to support its nonnegotiability argument, among them, Bremerton Metal Trades Council and Naval Supply Center Puget Sound, 32 FLRA 643 (1988).

28.Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097 (1995).

29.Providing political ammunition against the RIF is another use the Union freely admits it will make of the information, if disparate impact is shown by RNO data.

30.The Employer has provided numerous MSPB cases to establish its position.

31.The Employer cites Marcinowsky v. General Services Administration, 35 MSPR 6 (1987) as an example where this occurred.

32.The Union raises the specter of further litigation if OPM issues its new regulations prior to this Award or the effective date of the RIF agreement. The Arbitrator takes issue with the scenario presented. The Agency concedes in its post-hearing brief that if OPM's new rules issue prior to this RIF agreement becoming effective, they will govern and will require application of the new rules requiring crediting performance for retention standing. In that eventuality, there would be no need to return to the Panel. The parties could agree to the necessary conforming changes in contract language which would not be extensive.

(. . . continued) Issues 40 through 57