In the Matter of

DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

WASHINGTON, D.C.

and

NATIONAL TREASURY EMPLOYEES UNION

Case No. 97 FSIP 31

 

This decision appears in 4 parts: Issues 1 through 15 follow in the text below.

For issues beyond the first 15, see the following links:

next: Issues 16 through 39 

Issues 40 through 57

Issues 62 through 79

ARBITRATOR’S OPINION AND DECISION

    The Department of the Treasury, Internal Revenue Service, Washington, D.C. (IRS, Employer, or Agency) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse between it and the National Treasury Employees Union (NTEU or Union) under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119. After investigation of the request for assistance, which involves mid-term negotiations over the Employer’s decision to conduct a reduction in force (RIF), the Panel directed the parties to resume negotiations, on a concentrated schedule, over all remaining issues in dispute, with the assistance of the Federal Mediation and Conciliation Service (FMCS). If a complete settlement was not reached, at FMCS direction, the parties were to provide the FMCS with their final offers, and the FMCS would transmit such offers to the Panel by close of business on March 21, 1997. The parties were also informed that if final offers were transmitted to the Panel by the FMCS, it would use a procedure to resolve the impasse which requires selection from among them on an issue-by-issue basis, insofar as the proposals are otherwise legal.

    The parties were unable to resolve the dispute with FMCS assistance. After receiving their final offers, the Panel directed the parties to submit the dispute to the undersigned who, acting as an arbitrator, would issue a binding decision on all outstanding issues. Consistent with the Panel’s previous procedural determination in this dispute, the Panel also stated that my authority would be limited to selecting from among the parties’ final offers on an issue-by-issue basis, insofar as the proposals are otherwise legal.(1)

    On July 10, 1997, representatives of the parties convened before me for an arbitration hearing at the Panel’s offices in Washington, D.C. Prior to the hearing, the parties were permitted to submit statements of position regarding the nonnegotiability of proposals contained in each side’s final offer and pre-hearing briefs of no more than 2 pages (excluding attachments) on each of the issues at impasse.(2) During the hearing, the parties were afforded the opportunity to present their respective final offers, offer testimony, cross-examine witnesses, and submit additional documentary evidence for the record. After the hearing, post-hearing briefs were submitted.(3) The record is now closed and I have considered all of the relevant information contained therein.(4)

BACKGROUND

    The Employer’s mission is to administer and enforce the internal revenue laws and related statutes. The Union represents a nationwide consolidated bargaining unit of approximately 98,000 professional and nonprofessional employees. About half of these employees work either in the Employer’s National, 4 Regional, or 33 District Offices; employees in these offices are most likely to be affected by the RIF; they are covered by a master agreement referred to by the parties as NORD IV, which is due to expire on June 30, 1998. The other bargaining-unit employees unaffected by the RIF work primarily in IRS Service and Data Processing Centers, and are covered by a master agreement referred to as NCA IV, which is also due to expire on June 30, 1998.

ISSUES AT IMPASSE

    The parties disagree over 56 issues covering a wide variety of subjects related to the Employer’s proposed RIF.(5)

1. ISSUE #1 (Union § 1 A; Employer Introduction § A)

Union Statement of the Issue:

Will the terms and language of this agreement apply to only the specific RIF that IRS has announced to NTEU to trigger these midterm negotiations or shall they apply to all unannounced RIFs that IRS may wish to implement during the remaining term of the master agreement?

Employer Statement of the Issue:

Will this agreement apply to all RIF’s implemented during the term of the Parties master agreement or only the specific RIF NTEU claims triggered these midterm negotiations?

    a. The Union’s Position

    The Union proposes the following:

This agreement applies only to the RIF of the employees occupying the positions within the competitive areas that IRS had identified in writing to NTEU prior to the submission of proposals. It applies to no other RIF and any proposal to conduct another RIF will carry with it the obligation on management to separately notify the Union and negotiate to and through impasse, if requested, absent an emergency as that term is understood in Title VII of the CSRA.

The parties’ agreement should be limited only to the specific RIF for which the Union received notification in July 1996. To apply the agreement to all future RIFs until the expiration of NORD IV in June 1998 would conflict with Article 19 of NORD IV, which requires the Employer to give specific notice of any RIF, and is also inconsistent with the "tradition of the parties" when negotiating mid-term changes. The current RIF is limited to nonprofessional employees in noncontinuing offices, and does not include the majority of the bargaining unit. Thus, it would be unfair to deny the Union the right to negotiate subsequent RIFs when its proposals were more narrowly focused. NORD IV also permitted the Employer to propose an overall RIF procedure as part of its July 1996 right to reopen up to five term contract articles, but it chose to reopen other articles instead. If the Employer’s proposal is adopted, therefore, the Arbitrator would, in effect, be allowing it to reopen a sixth contract article.

    The Union’s position conforms "with a great deal of Federal Labor Relations Authority (FLRA) case law" and previous Panel decisions concerning the subject of RIFs. The Employer’s proposal, on the other hand, is outside the Union’s obligation to bargain because the law provides that when management wishes to make a midterm change a union must be provided with specific notice of the intended changes. Thus, "it is illegal and improper for IRS to insist to impasse on the language to which we object." The Employer’s opportunity to negotiate comprehensive RIF procedures occurred under the parties’ NORD IV midterm reopener clause; instead, it chose to pursue other matters, and should not be provided another chance to reopen the term agreement in the guise of negotiations over this specific RIF. Finally, although it had an opportunity to do so, the Employer presented no evidence at the hearing about why it believes the Arbitrator "should overlook the near dozen arguments the Union has raised in support of its position that the terms of the agreement be limited to the midterm RIF proposal IRS made at the outset of bargaining."

    b. The Employer’s Position

    The Employer proposes the following:

This agreement will remain in effect until the termination date of the NORD IV Agreement and will apply to any RIF conducted by the Agency from its effective date to its termination date.

Regarding the Union’s argument that the proposal is outside its statutory duty to bargain, "it confuses the notice the Agency provided to it of a midterm change pursuant to Article 47 of NORD IV with the notice provided to it under Article 19 regarding RIFs." In this regard, the current negotiations arose under Article 47, "Mid-Term Bargaining." The Employer fully informed the Union that it was negotiating "a RIF process," and for the Union to suggest otherwise is "disingenuous." The Union’s additional claim that permitting the Employer to negotiate over a general RIF process at this point would be inconsistent with the NORD IV midterm reopener provision should also be rejected. Article 19, "Reduction in Force," has "nothing to do with a RIF process" so "there was nothing within Article 19 to reopen." Finally, the Washington Regional Office of the FLRA has dismissed the Union’s unfair labor practice (ULP) charge alleging that the Agency engaged in bad faith bargaining by taking the negotiating position that the RIF Agreement would apply to all RIF actions during the term of NORD IV.

    On the merits of its proposal, while the current RIF is based on a reorganization, given its budgetary forecasts until the year 2002 and "realignment challenges," there is a "good likelihood" that the IRS "may have to conduct additional selective RIFs in the future if other voluntary methods do not sufficiently decrease the size of the workforce." Even though it has taken "extraordinary steps" to prevent the current RIF, as the history of these negotiations demonstrates, there is little reason to believe that bargaining over subsequent RIFs would result in a voluntary settlement by the parties, particularly "since a RIF is anathema to any union." Adoption of the Union’s proposal on this issue, therefore, would undoubtedly result in future requests for Panel assistance over RIF impasses between the parties, and "would not be an effective use of the parties’ or the Panel’s time and resources."

CONCLUSIONS

    The Arbitrator adopts the Union's proposal. The Employer's notice to the Union that triggered this bargaining informed of mid-term changes in working conditions represented by this specific RIF action. There was no request to bargain a general RIF agreement until later. The Employer did not avail itself of a contractually created opportunity to reopen the term agreement RIF article to negotiate a general RIF agreement even though that opportunity presented itself at nearly the same time as its notice of this RIF. The Union asserts that its proposals have been drafted with this specific RIF in mind. Other facts militating against the Employer's position include the imminence of new OPM RIF regulations which could put new rules in effect for any future RIFS, as well as expiration of the term agreement in June 1998.

2. ISSUE #2 (Union § 1 B 1)

Will the language of this agreement specifically exclude from coverage any transfer of function that IRS may conduct as part of the reorganization?

    a. The Union’s Position

    The Union proposes the following:

Furthermore, this agreement will not apply to any Transfers of Function [ToF] that IRS may wish to do in connection with the announced RIFs and reorganization. Because there is no agreement between the parties applying to a ToF, any such effort by the IRS will, as law provides, carry with it the obligation on management to separately notify the Union and negotiate to and through impasse prior to implementation, if requested, absent an emergency as that term is understood in Title VII of the CSRA. NTEU will have the right to negotiate over whether a ToF will be implemented prior to a RIF when they are involved in related reorganizations. A transfer of function is defined in regulation.

The purpose of its proposal is to make clear that the current negotiations involve only the subject of the specific RIF announced by the IRS in July 1996, and that "the Union’s right to bargain over any future transfer of function is in no way ‘covered by’ this agreement or otherwise waived." This is necessary because of developments in FLRA case law, and a recent advice memorandum issued by the General Counsel of the FLRA. Its proposed wording, therefore, would ensure its ability to "invoke negotiations" should it "uncover" a ToF in this reorganization. It would also allow the Union to benefit from the specific notice the law requires to trigger its midterm bargaining rights, rather than requiring it to address "speculatively" any and all ToFs that the Employer may be contemplating in the future.

    Turning to the Employer’s jurisdictional argument that Article 47 of NORD IV is a bar to consideration of this, and numerous other proposals in the Union’s last best offer, in response to the Arbitrator’s request that the parties present evidence on this point, "surprisingly . . . the IRS never presented any evidence to support its allegation or to otherwise give the Arbitrator cause to support its motion." In contrast, the testimony of the Union’s President, who was present when the term contract language was first written into the contract in the late 1970's, among other things, establishes that: (1) it was offered by IRS as part of management counterproposals and, therefore, any doubt as to the meaning of the clause should be resolved against the interests of the party that drafted the language; (2) it was presented by the IRS merely as a way of inserting some of the most common aspects of the "good faith bargaining" principles that had arisen in case law; and (3) it was the intent of those who drafted the language that it not bar the Union from submitting new proposals once bargaining began "as long as they were related to the issue of RIF." The Union President’s testimony is buttressed by that of its National Executive Vice President, who explained that in her role as Chair of Union mid-term bargaining teams dealing with IRS, "the parties have never interpreted or used Article 47 the way the Agency now urges it be used." In fact, evidence introduced at the hearing shows that the IRS itself, in the current mid-term bargaining, revised its earlier proposals in the very same manner that it is now contending the contract bars the Union from doing. Finally, the Employer’s jurisdictional contention "is nonsensical" because the interpretation it is based on is "antithetical" to free and open bargaining, and would force the Union in the direction of putting "every conceivable proposal" on the table at the outset to protect its primary interests.

    b. The Employer’s Position

    The Employer has no counterproposal. Preliminarily, it has no obligation to bargain over the Union’s proposal because it is "new" and, therefore, inconsistent with Article 47, Section 1, E, of NORD IV, on mid-term bargaining.(6) In this regard, NORD IV "provides that neither party may offer new proposals after the first day of negotiations unless the parties otherwise agree." The Union’s proposal, however, was presented for the first time on March 21, 1997, the day the Panel required the parties to submit their final offers to FMCS, and the Employer has not agreed to waive its rights in this regard. Despite the "confusing and indistinct testimony" of the Union President at the hearing on this point, the contract provisions "are plain and clear." In addition, the current negotiations only cover RIFs and certain pre-RIF activities, and referencing a ToF would be "superfluous" and "needlessly complicate" this RIF Agreement. Furthermore, the second to last sentence of the Union’s proposed wording could cause "unreasonable delay" if it is interpreted broadly to mean that the Union would have the right to negotiate whether a ToF in one competitive area must occur before a RIF in an unrelated competitive area. To avoid future disputes over the wording, and because the proposal "serves no useful purpose" overall, the Arbitrator should omit it from the final RIF Agreement.

CONCLUSIONS

    The Arbitrator declines to adopt the Union's proposal on the merits. The Union has not been convincing about the need for a provision that the Union says is intended to do no more than clarify that this RIF agreement does not cover transfers of function. The Employer agrees that the instant agreement covers only RIFs and pre-RIF activities. NTEU's bargaining rights as to any future management actions are established elsewhere, and there is no need to encumber this agreement with a provision of this type.

3. ISSUE #3 (Union § 1 B 2)

Union Statement of the Issue:

Will the language of this agreement specifically sever from its terms any dispute over redeployment that the parties may have?

Employer Statement of the Issue:

Will this agreement reference any continuing dispute the parties may have concerning the Redeployment Understanding?

    a. The Union’s Position

    The Union proposes the following:

The parties agree to formally sever from this dispute and agreement any continuing dispute they have over the application and termination of the redeployment agreement. Nothing in this agreement adversely impacts on any other rights the union may have to pursue disputes related to redeployment.

The reason for this proposal is essentially the same one as outlined above in connection with Issue #2: "The Union wishes to make it clear that any residual disputes and negotiations over the parties’ ‘redeployment’ agreement are not resolved by (nor ‘covered by’) this negotiation and agreement." The redeployment agreement was reached by the parties in November 1993, and was designed to avoid a RIF by encouraging employees to move into jobs that were to be continuing in nature. It included an impasse process to handle any disputes over its application. When the Employer terminated that agreement unilaterally in August 1996, there were a number of disputes that remained unresolved. Because it is arguable that this RIF Agreement replaces the redeployment agreement, the proposed wording would ensure that "those disputes continue on their own path whatever that may be, irrespective of this" RIF Agreement.

    b. The Employer’s Position

    The Employer has no counterproposal. The parties’ redeployment agreement of 1993 "did not concern or provide protections to those employees who were affected by the Agency’s reorganization and anticipated RIF." Because the redeployment agreement actually "served as an impediment" to assisting at-risk employees, in accordance with its terms, management terminated it unilaterally. It is unnecessary to complicate this RIF Agreement with references to a completely different agreement which is now "extinct," as the Union proposes. Moreover, the Employer has no obligation to negotiate over the proposal because the Union agreed in Article 47, Section 2, E, of NORD IV that any proposals offered in response to Employer-initiated changes in conditions of employment would relate to the changes proposed by the Employer, and the redeployment agreement is unrelated to the anticipated RIF. Finally, on June 19, 1997, the parties resolved the only remaining open issue under that agreement, which is another reason why it should not be mentioned in the current context.

CONCLUSIONS

    For reasons similar to those articulated with respect to Issue #2 the Arbitrator declines to adopt the Union's proposal on the merits. The pre-existing and distinct redeployment agreement referred to in the proposal is not referenced in this agreement. Any disputes between the parties about that earlier agreement are for another forum.

4. ISSUE #4 (Union § 1 C, first sentence; Employer Introduction § B)

Will the definition of a RIF be supplemented with language which would arguably require that the RIF be completed within 180 days of an unspecified date?

    a. The Union’s Position

    The Union proposes the following:

A reduction in force (RIF) is the release of a competing employee from their competitive level by furlough for more than thirty (30) calendar days, separation, demotion, or reassignment requiring displacement, when the release is required because of lack of work; shortage of funds; insufficient personnel ceiling; reorganization; the exercise of reemployment or restoration rights or reclassification of an employees’s position due to erosion of duties when such action will take effect after an agency has formally announced a RIF in the employee’s competitive area.

The only wording in dispute is the Employer’s inclusion of the phrase "and when the reduction in force will take effect within 180 days" which, admittedly, is found in the regulations "from which both parties have drawn the bulk of their proposals." The Union opposes its addition unless IRS produces "some authoritative explanation of the clause," and the Union then has an opportunity to examine it "for value and correctness." Otherwise, the parties could be "immediately engulfed" in an interpretation dispute in which the Government may be "liable for back pay and attorney fees."

    b. The Employer’s Position

    The Employer proposes the following:

A reduction in force (RIF) is the release of a competing employee from their competitive level by furlough for more than thirty (30) calendar days, separation, demotion, or reassignment requiring displacement, when the release is required because of lack of work; shortage of funds; insufficient personnel ceiling; reorganization; the exercise of reemployment or restoration rights; or reclassification of an employee’s position due to erosion of duties when such action will take effect after an agency has formally announced a RIF in the employee’s competitive area and when the reduction in force will take effect within 180 days.

Unlike the Union’s proposal, the Employer’s incorporates the entire definition of a RIF contained in 5 C.F.R. 351.201(a)(2), including reference to the 180-day time period. By eliminating this 180-day requirement, the Agency would be required "to use RIF procedures whenever it downgrades employees due to erosion of duties at any point after it has announced a RIF -- the RIF need not occur within 180 days of the downgrade." The Union’s proposal appears to be based on the mistaken belief that the regulation requires the Agency to complete a RIF within 180 days of the downgrade, when all it states is that "if a RIF occurs within 180 days of a reclassification action due to erosion in duties, then a RIF must be the mechanism used to downgrade the employee."

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal which simply tracks OPM regulations. There is no indication in the record that either OPM or the Employer interprets this language as requiring completion of a RIF in 180 days. A natural reading (and the Employer's reading) is that this last phrase modifies that ending part of the sentence relating to RIF actions due to erosion of duties, which is not the situation presented by the instant RIF.

5. ISSUE #6 (Union § 1 C, last two sentences)

Union Statement of the Issue:

Will this agreement contain language which clarifies that no unilateral changes that may have occurred prior to this agreement are authorized by this agreement and which clarifies what remedies will be taken as a matter of contract?

Employer Statement of the Issue:

Will this agreement prohibit the Employer from reassigning work in expectation of a reorganization and RIF? Further, will this agreement contain language concerning a status quo ante remedy for a Union claim of a unilateral change in conditions of employment?

    a. The Union’s Position

    The Union proposes the following:

In no case is IRS authorized by this agreement, implicitly or explicitly to reassign work in expectation of the reorganization and RIF. The parties agree that where a unilateral change has occurred prior to notice or the completion of bargaining the Employer will take all reasonable steps to return the situations to the status quo and make adversely impacted employees whole.

The primary concern which this proposal is intended to address is, once again, "the effect of this agreement on other agreements or disputes." In this regard, because of the FLRA’s "covered by" doctrine, the Union "wants to preserve a clear path to challenging Employer action that occurred prior to (and outside the bounds of) this agreement." Contrary to the Employer’s claim that the proposal would interfere with its right to reassign work in expectation of the reorganization, "we know of nothing in the law" giving it the right to "unilaterally and prematurely implement any reassignments that would otherwise be subject to the RIF." The proposal would make clear that if there is a violation of law or agreement relating to the premature implementation of the reorganization, "any arbitrators addressing the remedy are advised to move in a consistent direction." The inclusion of the phrase "the Employer will take all reasonable steps to return the situations to the status quo" would permit arbitrators to deviate from a status quo ante remedy consistent with the criteria established in case law. In summary, its proposal is a "virtual mirror of the law" except where it attempts to minimize the "potential inconsistencies" that could arise from different arbitrators dealing independently with allegations of illegal implementation. With respect to the allegation that the proposal violates management’s right to assign work, the Employer has totally misread the proposal -- it only states that nothing in the agreement authorizes IRS to reassign work in anticipation of the RIF and reorganization. Therefore, its proposed wording merely establishes that the Union has not waived its right to challenge any decisions by the Employer to make such reassignments in an appropriate forum. Finally, the last sentence of the proposal merely outlines an agreement as to what steps an arbitrator should take if illegal unilateral actions occurred, and "is not a bar to Agency actions past or future."

    b. The Employer’s Position

    The Employer has no counterproposal, nor does it have a duty to bargain over the Union’s proposal. By "absolutely prohibiting" management from reassigning any work in anticipation of the RIF or new organizational structure, "even if the workload reassignments have no more than a de minimis impact on the remaining employees," the proposal excessively interferes with its right to assign work, under section 7106(a)(2)(B) of the Statute. On the merits, its proposal becomes "extreme and untenable" in light of the extensive joint efforts undertaken by the parties to provide certain benefits and protections to employees in abolished positions. As a result of those efforts, approximately 1,200 employees have already left targeted positions and are no longer available to do the work previously assigned to them. The proposal is "ludicrous" because "critical work will simply not get accomplished." Further, the part of the proposal which would require management to take all reasonable steps to return to the status quo ante whenever changes in conditions of employment are made prior to the completion of bargaining, in effect, would make an appropriate remedy "a matter of contract." This is unreasonable because: (1) it would prevent unilateral changes from being made in an emergency or to the extent consistent with the functioning of the Agency; (2) the FLRA has determined that the appropriateness of a status quo ante remedy should be decided on a case-by-case basis; and (3) Articles 42 and 43 of NORD IV already permit the Union to address the issue of a unilateral change under the institutional grievance and arbitration procedures.

CONCLUSIONS

    The Arbitrator declines to adopt the Union's proposal on the merits. Concerning the first sentence of the proposal, the Union has not demonstrated a need for its proposal given its explanation that, whatever can be read into its language, it intends the creation of no obligations or rights by this language and only wants to make clear that the agreement does not waive any of its rights to challenge actions of the Employer. Those rights exist independent of this agreement. To adopt the Union's proposal language would place language in the contract that on its face is confusing and subject to an interpretation that something more than preservation of rights is intended. Regarding the second sentence, the Union's stated intention of merely providing "advice" to arbitrators while acknowledging the legal parameters surrounding the issue of status quo remedies fails to justify including contract language that, as with the first sentence, is less than clear as to the intended purpose. It is preferable for the Union to address its arguments for a status quo remedy to the arbitrator or other adjudicator who is considering any grievance or appeal it may make, on a case by case basis. Because this issue is resolved on the merits there is no need to address the Employer's negotiability arguments.

6. ISSUE #7 (Union § 1 D, sentence 1; Employer Introduction § D)

Will this agreement be administered in accordance with local contracts and past practices?

    a. The Union’s Position

    The Union proposes the following:

A RIF within the Internal Revenue Service shall be carried out in accordance with applicable laws, regulations, all national and local contracts, past practice, and this Article.

Its proposal refers to "local contracts and past practice," while the Employer’s does not. Because NORD IV "prescribes the binding nature of both local agreements and past practice," the Arbitrator "has no authority" to craft a midterm agreement that "omits this clear obligation" of the parties’ term agreement. The Union’s wording merely aims to ensure that local agreements or practices will be binding for purposes of the current RIF "so long as this national midterm agreement does not conflict with them." Moreover, in the absence of such wording, the Union would have to address many more issues in the current bargaining to protect employees and preserve working conditions, which is "hardly an efficient approach." Its proposal is also consistent with what the Panel ordered in a previous case involving the role of local agreements in negotiations over RIF procedures.(7) A decision to adopt the Employer’s proposal, on the other hand, would create an untenable situation where NORD IV "says one thing about the preservation of past practices not specifically changed by a national agreement and the midterm RIF agreement says or suggests another." Further, the position the Employer took throughout the negotiations on this issue, i.e., that it did not wish to be held liable for "past practices, since it did not know what the term meant and it had no way to identify them," should be rejected. Among other things, a union could never enforce its right to bargain over changes in past practices if it is acceptable for an employer simply to plead ignorance of them. Finally, adoption of the Union’s proposal presents a "win-win" situation for both parties, whereas adoption of the Employer’s would not.

    b. The Employer’s Position

    The Employer proposes the following:

A RIF within the Internal Revenue Service shall be carried out in accordance with applicable laws, regulations, national contracts, and this Article.

Adoption of its proposal would further the Agency’s goal of producing a comprehensive RIF agreement "which clearly and completely identifies the processes involved and the rights and benefits provided to employees." It would also serve as "an easy reference guide" for employees. The Union’s proposed wording refers to local contracts and past practices. Its adoption would confuse matters and "prevent a comprehensive RIF Agreement." Past practices are often vague and poorly understood, and the parties at the national level undoubtedly are not fully aware of all the terms in local contracts. Thus, the incorporation of either into the RIF Agreement "could result in a ‘final agreement’ which is anything but final," and lead to future litigation. Moreover, if the Union wanted to ensure that a specific past practice was included in the agreement, "it should have made a proposal concerning that specific past practice." The Panel essentially adopted the Employer’s position in a previous case when it rejected a union proposal which would have incorporated all past practices into a successor agreement.(8) Finally, it would be "ridiculous" for the parties to place into this agreement provisions of which they are not even aware.

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal finding that reference in that proposal to "applicable laws, regulations and national contracts" therein preserves what the Union states is the purpose of its proposal, namely, to preserve the rights given to the Union in NORD IV (and the law) to bargain over changes in existing working conditions. This intention is stated in the Union pre-hearing brief as follows:

The contract [NORD IV] provides, as does the labor law, that once a working condition has been established it cannot be changed without notice to the other party, whether that be at the national or local level. [Citation omitted.] The union's proposal on this issue merely aims to reflect the law and this contractual arrangement the parties have developed around changes in practice.

By its terms, the Employer proposal defers to the labor law and the contractual arrangements in NORD IV.

    On the other hand, the Arbitrator finds the Union's use of the term "past practice" to be misleading in this context, since it equates this term with "existing working conditions" (see prehearing brief). But these are distinct concepts in labor law and not coextensive. "Past practices" are a subset of existing working conditions that are enforceable as unwritten contract because they rest on demonstrated mutuality of behavior, knowledge, and reliance. As de facto contract, past practices cannot be changed without agreement. NORD IV specifically addresses the relationship of local to national agreements, and the parties' obligations when working conditions are changed and the parties are best served by addressing such issues in that context. In the Arbitrator's view, rather than clarifying, the Union's proposal creates uncertainty.

7. ISSUE #8 (Union § 1 D, sentences 2-4)

Union Statement of the Issue:

Will this agreement reflect a commitment that the reorganization will be conducted in a uniform manner for unit and nonunit employees alike?

    Employer Statement of the Issue:

Must the Employer take all steps "practicable" to reduce the adverse impact of a RIF on bargaining-unit employees? Further, will this agreement require parity with nonbargaining- unit employees?

    a. The Union’s Position

    The Union proposes the following:

The Service is committed to taking all steps practicable to lessen the adverse impact on employees. One measure of this is a commitment to take the same steps to lessen the impact of the RIF on unit employees that it did nonunit employees unless it can be shown that to do so in a particular case would excessively interfere with a management right. Where the Employer believes it would excessively interfere with its rights, it will put all its reasons for that conclusion in writing at the time it denies the employee his or her request or within 15 days of the employee making the request, whichever is sooner.

Overall, its proposal would reflect "in the agreement" the existing obligation in 5 C.F.R. 351.201(c) that employers apply RIF procedures "uniformly." This concept is so "vital" to the implementation of a RIF that it should be written into the document that will guide the RIF, and be handed to every manager, Union steward, and employee "who is impacted by the RIF." Since the Merit Systems Protection Board (MSPB) has "repeatedly" held employers liable for ignoring this principle, including it in the agreement would benefit all parties by drawing more attention and, arguably, promoting greater adherence to it. The proposal is also justified because a number of benefits, particularly in the area of moving expenses, have been provided to nonbargaining-unit employees which have not been granted to unit employees. Its additional wording is intended to acknowledge that the obligation to be uniform "in all likelihood has limits," i.e., the RIF Agreement or the law and regulations may legitimately mandate some disparities. Hence, its proposal would allow for this, and "avoid confusion over a potential conflict between law and contract." Finally, the Union has made changes in the wording of its original proposal on this issue which render moot the Employer’s allegations of nonnegotiability.

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s original proposal(9) on this issue is outside the duty to bargain because, in various ways, it interferes with management’s rights under section 7106(a)(2)(A) of the Statute to retain, layoff, and assign employees, and under section 7106(b)(1) to determine the numbers, types, and grades of employees assigned to an organizational subdivision. For example, because it requires that bargaining-unit employees be treated the same as nonbargaining-unit employees, "if the Agency did not abolish a management position, it would be prohibited from abolishing a unit position." As a result, the proposal directly interferes with management’s right to layoff employees because it places substantive restrictions on that right.

    On the merits of the Union’s revised proposal, it "will serve only as an invitation to endless litigation" and the filing of grievances, and thwart the objective of reaching a comprehensive RIF Agreement. This is because the meaning of the word "practicable," and the extent to which "parity" is required, are completely undefined. Moreover, because the circumstances currently facing the Agency differ from those which existed when it reorganized the nonbargaining-unit employees in 1995, "exact parity is no longer feasible." In this regard, for historical reasons relating to Congress’ failure to provide certain funding in FY 1996, the RIF is "going to impact the bargaining unit more heavily." Finally, the Union’s proposal seeks to obtain parity of treatment for the bargaining unit only with respect to the advantages that nonbargaining-unit employees allegedly received. This would be unfair, particularly given the fact that (1) some nonbargaining-unit employees were given directed reassignments outside of their commuting area, and (2) under previous agreements, bargaining-unit employees were given priority selection for bargaining-unit vacancies over nonbargaining-unit employees. Thus, "if the Union wants parity, bargaining-unit employees should be subjected to the same disadvantages as the nonbargaining unit."

CONCLUSIONS

    The Arbitrator declines to adopt the Union's proposal on the merits, which she finds unrealistic and overly broad, and suggesting a scope well beyond its stated purpose of "merely seek[ing] to reflect in the agreement the existing obligation of regulation 5 CFR 351.201(c) which requires that an employer apply the provisions of a RIF, 'uniformly'" (Union prehearing brief). By making "excessive interference with a management right" the only grounds for not according "the same" treatment, the proposal excludes consideration of changed circumstances which may, in a given situation, justify different accommodations being made now than were made 2 years ago. The "sameness" dictated is also open to possible interpretations, or expectations by employees, that things like moving expenses have to be matched dollar for dollar. There is no guidance as to the appropriate reference point. The difficulties in applying this proposal are not hard to envision and will not be imposed upon the parties. As the Union agrees, employees already have the ability to invoke the regulatory requirement of acting "uniformly".

8. ISSUE #9 (Union § 1 E, last sentence)

Will the Employer mail to all employees at their home addresses material prepared by the Union?

    a. The Union’s Position

    The Union proposes the following:

Additionally, IRS will mail via first class mail to the home address of all these employees in these competitive areas a package of material prepared by the Union.

Its proposal would require the Employer to attach employee mailing labels to envelopes containing material supplied by the Union, and submit the pre-paid mail to the post office. On the merits, the proposal is necessary because of changes in the law that prohibit the Employer from disclosing the home addresses of employees to the Union. Its position is consistent with a recent ruling of a private arbitrator (and the FLRA, which upheld the ruling) who found that the Union has no reasonable alternative for communicating with unit employees. The parties adopted this practice in a prior agreement, and the Employer has never enunciated a business-related reason why it should not be done again. The Employer’s assertion that the proposal violates Federal law because the Union will use the mailing to solicit new members is based on "wild speculation." It would make little sense to ask employees "who are about to leave the rolls" to join the Union. Moreover, this ignores the legitimate representational information that it will need to distribute as a result of the RIF. Among other things, employees need to be told that only the Union can represent them should RIF matters be appealable through the grievance procedure, and that only it may decide whether their case will go to arbitration. Written mailings of information would also permit the Union to protect itself from frivolous ULP charges. While some of the information could be distributed orally, much of it requires a level of technical precision necessitating uniformity in a bargaining unit that is national in scope and where the level of recognition lies with the Union’s national office. Nor is the Union’s proposal defective, as the Employer alleges, because it would require distribution of the mailing to too wide a group of employees. Its wording is specifically limited to "these employees," i.e., "far less than the entire employee body." For these reasons, "any benefit of the doubt should go to the Union on this issue."

    b. The Employer’s Position

    The Employer has no counterproposal. Because the Union’s "primary goal" is to shift the cost of mailing "propaganda and recruiting materials" to the Agency, the proposal violates section 7131(b) of the Statute by requiring management to use its employees to mail material related to internal Union business. The cost of mailing such material, even if it merely required $.32 postage for each bargaining-unit employee, would be $31,360. Given that the proposal does not specify any limitations on the amount of material the Union could send, the Agency could be required to spend "hundreds of thousands of dollars." Moreover, the Union has alternative ways of communicating with employees. In this regard, it already has access to employees’ home addresses provided by the Agency as recently as July 1996. In addition, there are numerous provisions in NORD IV which can be used for this purpose, among them, ones that require the Employer to mail each unit employee one piece of first-class mail on a quarterly basis, and to provide the Union with bulletin boards and "Take One Bins" adjacent to cafeterias and snack bars. For these reasons, there is no justification for the Union’s proposal.

CONCLUSIONS

    The Arbitrator adopts the Union's proposal. The Employer's objections and negotiability argument are based purely on speculation and an assumption that the Union will violate legal constraints and include in the mailing material that pertains to internal Union business. The parties have had experience with such arrangements in the past and the Employer offered no actual incidents to support its predictions here. The Employer has a remedy if, in fact, the Union violates the law, something that the Arbitrator does not believe the Union has any intention of doing. There is a great deal of useful information and advice for the Union to dispense to bargaining-unit employees in a RIF context. Unions in the Federal sector must operate within privacy rules that severely limit their off-site access to the people they represent and this is a reasonable proposal to ameliorate that situation. The Union indicates a reasonable approach, predicting its mailing will be in standard size business envelopes and no longer than six pages.

9. ISSUE #10 (Union § 1 F)

    Union Statement of the Issue:

Will the Employer be barred from filling job vacancies during this agreement and will it be clear from the agreement that nothing authorized the earlier filling of the so-called "needs" jobs?

    Employer Statement of the Issue:

Will the Employer be required to freeze the "needs jobs" on implementation of this agreement? Moreover, will this agreement prohibit the Employer from filling the "needs jobs" prior to the implementation of the agreement?

    a. The Union’s Position

    The Union proposes the following:

With the implementation of this agreement, the Employer will cease or freeze all actions connected with filling the "needs jobs" or those jobs created by the reorganization to do the work of the abolished or moved positions. Moreover, nothing in this agreement authorizes or condones any earlier efforts to fill those jobs.

The purpose of the proposal is to prevent the Employer from filling the jobs created by the movement of work to a different part of the organization until the RIF is complete, and simultaneously to require it "to fill them only in accord with the terms of the agreement." In this regard, "there is some evidence" that management has already attempted to fill the needs jobs, so clear contract wording is required to ensure that those employees most adversely affected by the RIF have had their best opportunity to find continuing work with the IRS. The proposal is advantageous to the Employer as well, as "there can be little dispute with the fact that the best people to fill these jobs are those who hold them today." Until the employees currently doing the work are removed from their positions by virtue of the RIF, filling the positions elsewhere would amount to "double-encumbering" the budgeted positions, or "paying two people to fill one budgeted slot." To the extent that the RIF is being implemented to save funds, the Union’s proposal meets that interest. In addition, filling the needs positions before giving adversely affected employees their appeal rights "smacks of management arrogance."

    Its proposal would not prevent IRS from filling the needs positions forever, but only until employees, primarily RIF victims, have a chance to bid on or move into the jobs "at various points in the RIF process flow," in accordance with its other proposals. The Employer is also not prevented from using alternative means to do any needed work, such as temporarily detailing employees or breaking up the job so that several employees perform smaller portions of it. For these reasons, contrary to the Employer’s contention, the proposal is negotiable.(10) As in a number of its other proposals, the last sentence is intended to make it impossible for the Employer to claim that this agreement absolves it from "any premature, illegal actions it may have taken to fill these jobs," and the Union should not be "faulted" for attempting to make the contract "crystal clear." Finally, since the IRS plans to impose a total freeze on the filling of positions soon after this agreement is signed, no harm would be done by adopting the Union’s proposal to freeze the filling of just the newly-created needs jobs.

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s proposal excessively interferes with its right to hire, make selections, and determine the numbers, types, and grades of employees required to meet its mission requirements.(11)  It would do so by totally abrogating the exercise of these management rights, and would prevent the filling of vacancies even where it is advantageous to RIF-impacted employees. In addition, to the extent the proposal suggests the freezing of vacancies prior to the implementation of the agreement, it is governed by Pre-RIF I, and outside the duty to bargain. It also would "significantly harm" unit employees while serving no purpose other than a political one of preventing the completion of the reorganization. In this regard, the parties have negotiated Amendment Three to the Pre-RIF Agreement requiring the Agency to announce those vacancies which it intends to fill in its post-RIF organization and to give priority selection to those employees who have been issued Certificates of Expected Separation (CES). Despite this, the Union now proposes to discontinue the filling of the needs jobs even if there are "at-risk" employees qualified for needs positions and willing to accept them. As testimony at the arbitration hearing showed, there are approximately 1,100 field employees who received a CES and 600 - 900 remaining needs positions to be filled. Finally, the proposal’s last sentence "makes no sense" and is "extremely confusing" because the parties have already agreed to make efforts to fill the needs positions in the Pre-RIF Agreement and Amendment Three.

CONCLUSIONS

    The Arbitrator declines to adopt the Union's proposal on the merits. This is the first of a number of issues where the Union's intention is improving or increasing the options (and welfare) of IRS employees facing RIF, but where examination of the actual import of its proposal language creates questions as to the actual impact. A RIF, of all personnel actions, is one where affecting the rights and options of one employee may directly and inevitably impact the rights, options, and outcomes of another (or others.)(12) In its Pre-RIF agreements the parties have proceeded on the basis of encouraging as much movement as possible of employees expected to be targeted by the RIF. The purpose is to get employees out of non-continuing positions so that the need for a RIF can be obviated to the maximum possible degree. Thus, in Amendment III to the Pre-RIF agreement, signed in late May, the parties opened the "needs" positions to employees receiving CTAP/CES notices. The instant proposal would have that now end, and have the vacancies frozen to maximize the opportunities of employees farther down the RIF timeline. It is not clear that this is necessarily better for employees, or most employees. At the hearing, the Union said its intention was only to bar merit actions, not CTAP/CES movement into needs positions, and also maintained that this proposal does not bar temporary assignments or details. But the proposal, by its terms, is not so limited. It says "the employer will cease or freeze all actions connected with filling the 'needs jobs'." This contrasts with the significantly narrower union proposal in the NRC and NTEU case that proposed freezing "reassignments and competitive promotions." The Arbitrator is without authority in this case to redraft the Union's proposal and is unwilling to adopt language which on its face is inconsistent with the supporting rationale. Aside from the confusion created for all parties concerned with the administration of this agreement, there is the fact that under standard rules of contract interpretation a grievance arbitrator asked to enforce this contract would be justified in going no further than the plain meaning of the unambiguous term, "all actions."

    The Arbitrator considers the second sentence of the Union's proposal inappropriate given the Union's pre-RIF agreement about filling needs positions, and its existing rights to redress any management actions which it believes violates that, or other, agreements.

    Given the Arbitrator's decision to reject the Union's proposal on the merits, it is unnecessary to address the Employer’s allegations of non-negotiability, however, the differences between this proposal and the one in the NRC and NTEU case, referenced above, reflect this Arbitrator's view that there is no "substantially identical" FLRA decision establishing the negotiability of the Union proposal.

10. ISSUE #11 (Union § 2 A; Employer § I A)

Union Statement of the Issue:

Will employees be given administrative time to attend a Union orientation or training session on the new RIF procedures? If so, when will the meetings occur and what other procedures will apply? In the alternative, will employees be limited to using administrative time to attend management run formal meetings to learn about the RIF?

Employer Statement of the Issue:

Will the Union be permitted to conduct employee briefings during work time, and if so, under what circumstances? Further, will these briefing be with "all employees" as proposed by the Union or "any employee in a competitive area undergoing a RIF" as proposed by the Employer?

    a. The Union’s Proposal

    The Union proposes the following:

All employees, and any involved Union representatives, will be given 1 hour of administrative time, or whatever additional time is considered reasonable, to be briefed on the RIF contract, procedures, benefits, rights, and related matters by the Union, irrespective of any formal meeting management may wish to hold with them. Management will provide space and other reasonable supplies for the Union to hold the meetings. It will also work with the Union to schedule employees for these briefings so that attendance is orderly. A management official may attend this briefing only by the invitation of the Union. These meetings will be scheduled at the convenience of the local Union officials and with the concurrence (on scheduling only) by management. However, they must be scheduled for the period after copies of the agreement have been distributed and before notices are distributed. The local parties will negotiate over whether they are to be scheduled before or after any management formal meetings. These briefings in no way impact on the right of management to schedule its own formal meetings nor the contractual and legal rights of the Union in those formal meetings.

Its proposal should be adopted because it "is far clearer and easier to administer" than the Employer’s. In this regard, "virtually all IRS employees" will be affected by the RIF. If case law requires that the proposal be limited to only "adversely impacted employees," however, the Union is willing to interpret the proposal accordingly. The amount of time requested is reasonable given the nature of the discussions to be conducted. By setting forth straightforward procedures, one-on-one discussions between Union representatives and employees are likely to be avoided, to the benefit of all concerned, including the Employer. The proposal also has the advantage of providing guidance to local stewards and managers as to how the meetings would be arranged, thereby avoiding any potential clash with management’s right to assign work. As to the argument that its proposal interferes with management’s right to assign work, the Union could not have made it any clearer that the scheduling of these meetings would be "with the concurrence of management." In addition, the existing provisions within NORD IV apply to Employer-scheduled formal meetings, and not to the representational meetings contemplated under its proposal, so the matter is not covered by them. The Employer’s proposal, on the other hand, is unacceptable because it "amounts to nothing more than a pledge to hold a statutory formal meeting about the RIF with ‘impacted employees’." Because Article 9, Section 2, D of NORD IV "does not clearly apply to RIF situations," disputes over the implementation of the proposal would be inevitable were it to be imposed by the Arbitrator.

    b. The Employer’s Position

    The Employer proposes the following:

Any employee in a competitive area undergoing a RIF who is in a series at or below the grade level which is scheduled for some job abolishment will be given administrative time to be briefed by management on RIF procedures, rights, and related matters. Consistent with Article 8, Section 1 F of NORD IV, a Union representative will be entitled to attend the briefing. Immediately following the conclusion of the briefing, the Union will be provided with up to 30 minutes to meet with employees.

The Union’s proposal conflicts with management’s right to assign work under section 7106(a)(2)(B) of the Statute, and is not an appropriate arrangement since it does not preserve management’s right to require employees to remain on duty to perform necessary work. It is also nonnegotiable because it is covered by Article 9, Section 2, D of NORD IV, which specifically describes when Union stewards will be granted official time. On the merits of the proposal, there is no need for the Union to provide additional briefings to employees. The Employer is already entitled by law (section 7114 of the Statute) and contract (Article 8, Section 1, F of NORD IV) to brief employees on matters regarding conditions of employment, and the Union is entitled under the contract to meet with employees separately for 30 minutes afterwards. The Employer is planning on exercising those rights by providing employees in competitive areas undergoing the RIF with a 4-hour "training course." Another 1-hour meeting would cost the Employer additional work time and travel costs for employees in remote posts of duty, and is particularly unacceptable if it would be attended by "all employees," as the Union proposes. Finally, requiring local negotiations before either party may provide briefings would only cause further delay in the issuance of RIF notices and not result in "a comprehensive and complete RIF Agreement."

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal. Providing time to all 98,000 bargaining- unit employees, not just those in the areas of the IRS where the RIF will occur, to be briefed by the Union about the RIF goes beyond what is reasonably called for. The Union already has the right under its term agreement for a representative to be present at the formal meetings the Employer will hold concerning the RIF, and to have 30 minutes at the end of that meeting to brief employees without management present. The Arbitrator has ordered adoption of the provision allowing for the Union send out RIF information and advice by mail. Implicit in the Employer's language being ordered is that employee briefings will take place after this agreement has been concluded, the agreement necessarily comprising one element of the "RIF procedures, rights and related matters" to be addressed.

11. ISSUE #12 (Union § 2 B 1 and 2)

To what extent will the Employer offer early out and buy out authority?

    a. The Union’s Position

    The Union proposes the following:

The Employer will maximize the use of authority it has to grant early out retirements. It will grant an early out retirement to any applying employee whose position could be filled at any grade in the career ladder by a qualified employee in a noncontinuing position so long as the qualified employee has applied for that position or otherwise indicated he or she would move to the position once vacated.

IRS will use its buy out authority to the maximum extent possible under law to lessen the impact of the RIF. Buyouts will be made available to all employees who are in noncontinuing positions or who hold a position that could be filled by those employees qualified and willing to do so, irrespective of geographic location. Moreover, IRS will also seek authority from whomever is necessary to extend its buyout authority to reach all possible groups of employees. It will do this prior to the effective date of this contract.

Under its proposal, the Employer would be required to "aggressively" use its early out and buy out authority to create openings for employees who otherwise would be adversely affected by the RIF, although management would not be required to select "the potentially RIF’d employee." If adopted, this would do "several positive things for the Government." The Employer would be: (1) keeping an employee who wishes to stay while facilitating the retirement or separation of one who wishes to leave; (2) potentially avoiding the need to RIF in one or more offices, and the "related chaos" of that action; and (3) voluntarily accomplishing the reorganization it wants. While the Union was willing to accede to management’s desire in pre-RIF agreements to limit its early out and buy out authority so that resources were conserved, with the RIF imminent, the broader wording of its proposal is now justified. Moreover, among other things, maximizing buy out opportunities makes sense because of the fact that previous efforts have "nearly cut the need for the RIF in half," and the IRS has not used all of the over 2,000 buy out slots that it allotted, and Congress approved. As to the Employer’s nonnegotiability allegations, the Union knows of no management right to prevent employees from leaving the Agency. The Employer also "misconstrues" the proposal because it does not require management to fill positions with at-risk employees -- the Agency could choose not to place them in the vacant position. It would also have a limited impact because the benefit only lasts as long as there are at-risk employees. Finally, the Union’s proposal represents yet another instance where both the Employer and employees would win if it were adopted. It appears that the only reason the Employer opposes it is that "the idea was not theirs."

    b. The Employer’s Position

    The Employer has no counterproposals on this issue "in light of Amendment Three to the Pre-RIF Agreement."(13) The Union should be required to withdraw its proposals for a number of reasons. First, they interfere with management’s right to retain and lay off employees, and would result in the departure of employees from the Agency that it does not wish to lose; nor are they appropriate arrangements because they excessively interfere with its right to make selections by requiring positions of retiring employees to be filled by qualified employees in noncontinuing positions, as well as its right to assign employees.(14) Second, in their previous pre-RIF agreements the parties implemented two different sets of buy out proposals which offered buy outs not only to at-risk employees receiving CESs, but also to any employee within the competitive or commuting area whose departure would create a placement opportunity for an employee with a CES. Because Federal regulations require agencies to reduce employment levels by one full-time equivalency for each buy out offered, the parties agreed to cap the number of buy outs to the number of employees expected to be separated in the RIF. Thus, among other things, offering buy outs "without limitation," as the Union proposes, could reduce the Agency’s staffing level below what is required "to maintain an effective organization." Third, the Agency’s experience with its Pre-RIF Agreement demonstrates that at-risk employees are overwhelmingly unwilling to move to new positions outside their commuting areas, so maximizing buy out authority along the lines the Union proposes could result in the Agency paying great sums of money (the average cost of a buy out to the Agency is $30,000) "for the creation of vacancies that employees will not move to fill." Fourth, because the Union’s proposal would result in the offering of an unlimited number of buy outs nationwide, it would exceed the plan originally offered by the Agency and approved by Congress. Thus, "the Agency would have to seek additional authority from Congress to extend buy outs." Fifth, the proposal also requires the Agency to obtain approval to offer the buy outs "prior to the effective date of this contract;" as it has not sought the necessary approval, IRS could be in breach of the RIF Agreement "as soon as it is effective." Finally, because the Union’s early out proposal is inconsistent with Amendment Three, it too should be rejected.

CONCLUSIONS

    The Arbitrator must decline to consider the Union's proposal. The Union has urged eloquently here, and with respect to several other issues, that the competitive areas drawn by the Employer for this RIF are overly narrow, unfair, and arbitrary. The appropriateness of those competitive area determinations is not before this Arbitrator, however, as all agree. The "remedy" to the competitive area situation hoped for by the Union in this proposal, is a mandatory, national buy-out program. But this proposal cannot be addressed by the Arbitrator due to the negotiability questions raised by the Employer.

    It is plain under the FLRA's decision in Carswell(15) that interest arbitrators in the Federal sector are not authorized to make negotiability rulings in order to resolve such issues, when raised. We can resolve such issues only if it is possible to apply existing FLRA law arising from a case in which the issues are "substantially identical," and the parties’ contentions and proposals are similar. The Union has cited no case satisfying this standard and, in fact, FLRA cases cited by the Employer suggest a view by the Authority that does not support the legality of the Union's proposal. Thus, the Union has to seek a determination on the negotiability of its proposal from the FLRA before the proposal can be considered on its merits. Should the Union obtain a ruling from the FLRA declaring the negotiability of its proposal and the parties reach impasse in subsequent bargaining, a new request for assistance from the Panel can be filed.

    In its presentation during this case the Union cited several narrower concerns, such as the length of time of the existing buy out program, and the impact of the limitation to the "commuting area" in that program where jobs just outside the prescribed commuting distance are unavailable even though quite feasibly "commutable." However, the Union proposal is not tailored to address those subjects more directly, despite the early Panel determination of a "final offer" procedure for resolving this impasse. The Arbitrator has no authority under the Panel's order to revise or rewrite the substance of the parties' proposals.

12. ISSUE #13 (Union § 3 A.1.; Employer § V A 1, sent. 1)

How long will employees have CTAP notices prior to being RIF’d, i.e., for at least 6 months or no more than 6 months?

a. The Union’s Position

The Union proposes the following:

Certificates of Expected Separation (CES) or CTAP letters will be provided to employees in noncontinuing positions 6 months prior to the effective date of one’s removal from their competitive level. In no case will an employee have less than 6 months of employment with a CES prior to being Rif’d absent an emergency, as understood under 5 USC Section 7106(d).(16)

The granting of CES/CTAP status to employees creates a "win-win" situation for the employees and the Government because, under the program, a certified employee is entitled to bid on vacant positions within the IRS or other agencies and, if well-qualified, must be selected. Among other things, by placing employees in this manner the costs and disruption of RIF’ing those employees is avoided. For this reason, "the longer the employee has the certificate the greater the chances of realizing this mutual gain." A 6-month period is warranted since: (1) over 1,000 employees have already had CTAP letters for 6 months under one of the parties’ pre-RIF agreements, and it would be "patently unfair" to grant a lesser period to other employees "unless there is a good reason to do so;" (2) IRS never issued certificates to "all potentially impacted employees" last year, as it agreed to do, "because of its own poor record keeping," and employees should not lose a reasonable opportunity to use CTAP benefits due to "Employer incompetence;" (3) "in all likelihood," it will take that long for management "to finalize the RIF;" and (4) without the threat of a significant penalty, the Employer "has no motivation to administer this benefit evenhandedly." While the Employer does not oppose 6 months, its proposal should be rejected because it is designed to grant management "immunity from a make-whole arbitration remedy" should it fail to do so.

    b. The Employer’s Position

    The Employer proposes the following:

Career Transition Assistance Program (CTAP) certifications will be issued and provided to all competing employees as soon as possible after the completion of the personnel data verification process and not more than 6 months prior to the proposed effective date of a reduction in force.

Its proposal merely restates the time frames the parties agreed to in their Pre-RIF Agreement, which in turn "was adopted from 5 C.F.R. 351.807." Unlike the Union’s proposal, it would provide the Agency with "the flexibility needed to balance the benefits which CTAP provides to employees with the Agency’s need to run a RIF." The Union’s proposal, on the other hand, "seeks to change the terms of the Pre-RIF Agreement" without any justification, other than to delay the RIF. In this regard, when coupled with its other proposals, "the Agency would be unable to separate employees for 1 year." The proposed wording also would have the Agency provide CTAP rights to employees occupying noncontinuing positions rather than to employees facing RIF-separation, which is inconsistent with Amendment Three of the Pre-RIF Agreement, and would require the revocation of all CESs. Finally, during the arbitration hearing the Union stated that its proposal would not hold up the RIF in any competitive area, but merely exempt certain employees from the first RIF until they had CESs for 6 months, at which time the Agency could then conduct a second RIF to place those employees. While the proposal "is highly innovative," it is also "highly illegal" because the RIF regulations do not permit an agency to "exempt" employees from RIFs.

CONCLUSIONS

    The Arbitrator adopts the Employer's proposal. The Arbitrator is sympathetic to the idea that employees facing RIF should have sufficient time to seek other employment opportunities. Less compelling is the idea that fairness necessarily dictates an equal time for all employees. In any case, this is one of those proposals referred to in the CONCLUSIONS on Issue #10 where it is not clear that a provision that on its surface is beneficial will not have consequences farther down the RIF timeline that are undesirable, consequences that the Union has not chosen to address. As the Arbitrator understands how the Union's proposal would, or could, work, if an employee in a non-continuing position received a CTAP/CES notice under pre-RIF arrangements and then received a RIF notice with an effective date less than 6 months from the CTAP/CES certificate issuance, the RIF action releasing that employee from his or her competitive level could not take place. The Employer has, late in the proceeding, raised the argument that this would cause an illegal, separate RIF. Illegality aside, the problem is that employees "down the line" from the employee yet to be released would have any bump/retreat displacement also delayed, which might not necessarily be in their interest given that existing vacancies might be being offered to other RIFed employees "in lieu of separation". Because of this and other conceivable scenarios, the Arbitrator does not believe the Union's suggestion as to how its proposal would work is feasible or realistic or consistent with governmentwide RIF regulations. The RIF cannot be rationally and fairly done "piecemeal." It is noted that the Union did not suggest that any significant number of employees would likely be in the situation this proposal is meant to cover.

13. ISSUE #15 (Union § 3 A 2)

Union Statement of the Issue:

Will the Employer be obligated to follow any due process procedures prior to taking a CTAP/CES from an employee?

Employer Statement of the Issue:

Will the employee be given a written notice, an opportunity for an oral and/or written reply, and a final decision in writing before the employee’s CES/CTAP notice is "taken away"?

a. The Union’s Position

The Union proposes the following:

Once a CES/CTAP letter is granted to an employee, it will not be taken away from the employee, absent a written notice of the reasons for doing so, an opportunity for an oral and/or written reply, and a final decision in writing from the Employer. All the procedures of the oral and written reply process as found in the Adverse Action article of the contract will apply.

Because CES/CTAP letters grant employees "a substantial right or entitlement," procedural protections are necessary for "the taking" of either of these documents. Its proposal "would require a minimum of effort" on the part of the Employer, i.e., its written reasons for revoking the letters, providing the employee with a written or oral opportunity to respond, and the issuance of a final decision with reasons in writing. The proposed procedure should minimize management error, and help both parties in the event the Union’s argument, that the taking of benefits given to employees through regulation triggers a Constitutional entitlement to due process, is sustained. Even if the Union is wrong, providing some form of procedural protection now "rather than through a judicial appeal that potentially will block implementation of the agreement" is warranted, particularly given that the adverse impact on the Employer would be minimal, and the harm to the employee so great.

    b. The Employer’s Position

    The Employer has no counterproposal. Because the conditions under which an employee’s CTAP entitlement expires are spelled out in the CTAP regulations themselves, the Union’s proposal "makes little sense" and could potentially violate those regulations. For example, if an employee remained "eligible" for special CTAP benefits pending the 30-day notice and oral reply period provided under the proposal, yet the employee’s RIF separation notice was canceled during the interim, the regulation would be violated since one of the three conditions for CTAP entitlement is that the employee be identified as surplus. The adoption of the proposal could also result in an employee who is no longer at risk for RIF-separation being selected for a vacancy over an employee who is at risk. With respect to the Union’s argument that before rescinding an employee’s CTAP certificate he or she is Constitutionally entitled to "a pre-deprivation 5th Amendment due process hearing," the Supreme Court recently ruled that no such right existed when an employee was suspended without pay before receiving notice and a hearing.(17) This supports the Employer’s view that a CTAP certificate is not a sufficient "property interest" to trigger pre-deprivation due process requirements, and that the parties’ negotiated grievance procedure is the appropriate avenue for challenging such management decisions.

CONCLUSIONS

    The Arbitrator declines to adopt the Union proposal on the merits. The Union has not been persuasive about the need for the procedure proposed. CTAP/CES notices are revoked only when eligibility ends and this takes place under three specific, objectively-verifiable situations: RIF-separation, cancellation of the RIF notice or other certification identifying the employee as surplus, and appointment to a permanent position. The Arbitrator's view is that the grievance procedure is adequate to take care of any complaints of error with regard to such criteria on a timely basis. The Union has not explained away the Employer's contention that the time the Union would build into a reply process in its proposal could possibly disadvantage other employees. (See the Arbitrator's concerns expressed on Issue 10 about the actual, if unintended, impact of Union proposals.)

 

next: Issues 16 through 39 

Issues 40 through 57

Issues 62 through 79

ENDNOTES

1.Due to other developments which arose during the period between the Panel’s designation of the undersigned as Arbitrator and the arbitration hearing, I was also granted the authority to order the parties to withdraw their proposals with regard to those issues where, in my judgment, neither party’s final offer could be implemented effectively consistent with the terms of the parties’ “Amendment Three” agreement of May 27, 1997.

2.I also met with the parties for a pre-hearing conference on June 30, 1997, primarily to discuss the procedures that would be followed during the hearing and any other preliminary matters. In the course of the pre-hearing conference I sustained the Employer’s objection to the Union’s May 14, 1997, revised final offer by requiring it to revert back to its original proposals on Issues #11, #26, #55, and #69. Also, the Union was permitted to submit a supplemental pre-hearing brief of one page on the merits of each of its original proposals on these issues, but subsequently elected not to do so.

3.In its post-hearing brief, the Employer objected to a suggestion made by the Union during the arbitration hearing that the effective date of this Opinion and Decision be deferred for 30 days to give the parties sufficient time to review and “improve” it.

4.Following receipt of the parties’ post-hearing briefs, the Union filed a “Motion to Reopen the Hearing Record,” alleging that the Employer raised new factual assertions and arguments in its post-hearing brief to which the record had been closed that “gravely harmed” the Union, and which required a reopening of the record to permit rebuttal to prevent the “substantial possibility” that this Opinion and Decision would be based “on a nonfact.” The Employer filed a “Response to the Union’s Motion to Reopen the Hearing Record” denying the Union’s allegations, and opposing the motion. Thereafter, I conducted a conference call with the parties during which the Union’s motion to reopen the record was generally denied, although exhibits 2, 3, 4, 6, 8, 10 and 11 attached to the Employer's post-hearing brief were denied admission to the record since this factual evidence was available at the time of the hearing and could have been proffered then. The Union was permitted to submit a response to what it alleged were nonnegotiability allegations raised for the first time with respect to its proposal on Issue #13; the Employer was permitted to submit to the Union and the undersigned a follow-up letter explaining the conditions surrounding Congress’ approval of its most recent buy out plan, a matter raised for the first time during the arbitration hearing; and both parties were permitted to submit affidavits regarding the Union’s allegation that certain facts surrounding the Employer’s presentation during the arbitration hearing of its “time line” for completing the RIF process under its final offer were intentionally misrepresented.

5.In discussions that occurred at various stages prior to and during the arbitration hearing, the parties were able to resolve their impasse over an additional 24 issues identified by the parties as follows: Issues #5, #14, #17 through #24, #35, #36, #49, #52, #56, #58 through #61, #64, #72, #76, #78, and #80. In what follows, the 56 statements of the issues that remain were by and large formulated by the parties themselves; where they could not mutually agree to an issue statement, each party’s preferred statement is provided.

6.The Employer appears to have raised this nonnegotiability argument with respect to the Union’s proposal on this issue for the first time in its pre-hearing brief of June 23, 1997. The identical argument was also raised for the first time in its pre-hearing brief regarding the Union’s proposals on Issues #9, #15, #31(c), #70, #73, #74, #75, and #77. By way of explanation, it argues in its post-hearing brief that the Panel’s procedural determination of February 14, 1997, bars the submission of the Union’s March 21, 1997, proposals on these issues. In this regard, it states that “the new proposals contained in the Union’s [March 21 final offer] did not constitute ‘issues in dispute’ since they were not even in existence at the time of the Panel’s February 14, 1997, order. By submitting entirely new proposals on the last day of Panel-ordered mediation, the Union clearly violated the Panel’s order” (Employer’s Post-Hearing Brief, p. 12). In addition, an argument with respect to their inconsistency with Article 47, Section E, of NORD IV, was raised in its “Statement of Position Regarding Negotiability” of April 25, 1997, concerning the Union’s proposals on Issues #10, #27, #29, #33, #51, #57, #62, #63, and #67. (It was also raised on a number of additional issues which are now no longer at impasse.) Accordingly, the Employer is now on the record as having raised these jurisdictional arguments on 18 live issues in this case. The Arbitrator takes note of the Employer’s contention here, rather than repeating it 18 times in the text of this Opinion and Decision. Having noted the contention, the Arbitrator has determined not to decline jurisdiction over these issues on this basis. In all but two instances, the issues have been resolved by adoption of the Employer's proposal or by declining consideration because of negotiability issues that must be determined by the FLRA. Conceding the plain language of Article 47(F) the Employer did not rebut Union testimony concerning the origins and purpose of this language nor cite any instance in the twenty years of its inclusion in the parties' contract when it has been interpreted or applied, as here argued, despite the vast amount of bargaining in which the parties have engaged. Nor will the Arbitrator interpret the Panel's February 14 order as a separate ground for declining jurisdiction over the Union's proposals on these issues, influenced by the size of this case and the somewhat unusual procedures used by the Panel, and the very late and superficial way in which this argument was raised by the Employer.

7.Department of Defense, Defense Logistics Agency, Defense Distribution Region West, Stockton, California and American Federation of Government Employees Locals of Defense Distribution Region West, AFL-CIO, Case No. 94 FSIP 156 (February 23, 1995), Panel Release No. 371.

8.Department of the Army, Presidio of San Francisco, San Francisco, California and Local 1457, American Federation of Government Employees, AFL-CIO, Case No. 91 FSIP 85 (December 30, 1991), Panel Release 322.

9.Here, as elsewhere, the Union was permitted by the Panel to revise wording on an issue in response to Employer allegations of nonnegotiability. In those instances where it is unclear whether the Employer believes the Union’s revisions have cured the nonnegotiability problem, the jurisdictional arguments it initially raised regarding the Union’s original proposal in the statement of nonnegotiability it submitted to the Panel on April 25, 1997, have been included.

10.In this regard, the Union argues that the FLRA found a “very similar” proposal to be within the duty to bargain in National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566 (1988).

11.The Employer supports its allegation by citing American Federation of Government Employees, AFL-CIO, Local No. 12 and U.S. Department of Labor, Washington, D.C., 25 FLRA 987 (1987).

12.No doubt for this reason OPM RIF rules bar ameliorative actions like an alternative offer of assignment "if the employee's acceptance of the offer would result in a more severe reduction in force action for another employee." Module 3, Unit A, Sec. 19, para. 10.

13.The Employer withdrew its early-out proposal in the cover letter of its pre-hearing brief.

14.Among the many cases it cites to support its nonnegotiability arguments are National Federation of Federal Employees, Council of Veterans Administration Locals and Veterans Administration, 31 FLRA 360 (1988) and National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Air National Guard, 21 FLRA 905 (1986) (KANG).

15.Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988)

16.The Union revised its original proposal in response to Employer nonnegotiability allegations. As the Union’s revisions appear to have cured the alleged defects, the Employer’s jurisdictional arguments will not be addressed further.

17.Gilbert v. Homar, No. 96-651, 197 U.S. LEXIS 3546 (Sup. Ct. June 9, 1997).