National Treasury Employees Union and NTEU Chapter 12 (Union) and Department of the Treasury, Internal Revenue Service, Birmingham District, Alabama (Activity) (Authority decision, January 18, 1980)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

NTEU Chapter 12 sought bargaining after the IRS Birmingham District issued a policy requiring some revenue agents to assist tax auditors. The union said it wanted to negotiate procedures for choosing which agents would perform the work. The Authority found that the union had not presented a specific proposal whose negotiability it could decide. It also said the parties' dispute over what bargaining had been requested belonged in an unfair labor practice proceeding. The negotiability appeal was dismissed without deciding whether any proposed assignment procedure was negotiable.

Decision snapshot

• Authority: 5 U.S.C. §§ 7117 and 7118; 5 C.F.R. § 2424.1.
• Outcome: Negotiability appeal dismissed without a merits ruling on a proposal.
• Key point: A general request to bargain did not identify a specific proposal for Authority review.

Full text (FLRA public release)

[ v02 p466 ]

02:0466(64)NG

The decision of the Authority follows:

2 FLRA No. 64

NATIONAL TREASURY EMPLOYEES UNION
AND NTEU CHAPTER 12
(Union)

and

DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
BIRMINGHAM DISTRICT, ALABAMA
(Activity)

Case No. 0-NG-158

DECISION ON NEGOTIABILITY APPEAL

IN JUNE OF 1979, IRS, BIRMINGHAM DISTRICT (THE ACTIVITY) ISSUED A
POLICY REQUIRING REVENUE AGENTS TO ASSIST TAX AUDITORS IN AUDITS UNDER
CERTAIN CIRCUMSTANCES. THEREAFTER, NTEU, CHAPTER 12 (THE UNION) SOUGHT
TO RESCIND THE AGENCY MEMORANDUM SETTING FORTH THE ALLEGED NEW POLICY
AND GENERALLY REQUESTED "THAT THE CHANGE IN PRACTICE AND POLICY BE
NEGOTIATED AS PROVIDED FOR IN THE CONTRACT." THE AGENCY RESPONSE TO THAT
REQUEST INCLUDED THE ALLEGATION THAT "THE WORK ASSIGNMENT PRACTICE . . .
IS NOT NEGOTIABLE" UNDER SECTION 7106 OF THE STATUTE.

ON SEPTEMBER 5, 1979, THE UNION FILED A PETITION FOR REVIEW WITH THE
AUTHORITY. IN ITS PETITION, THE UNION CONTESTS THE AGENCY ALLEGATION,
WHICH IT DESCRIBED AS STATING THAT "ANY POTENTIAL PROPOSALS BY THE UNION
REGARDING THE PROCEDURES FOR DETERMINING WHICH REVENUE AGENTS WOULD BE
ASSIGNED TO CONDUCT OFFICE AUDIT INTERVIEWS WOULD BE NONNEGOTIABLE." IN
THIS REGARD, NEITHER THE UNION'S LETTER TO THE AGENCY REQUESTING AN
ALLEGATION NOR THE PETITION FOR REVIEW CONTAINS A MORE EXPLICIT PROPOSAL
INDICATING THE PRECISE MATTER SOUGHT TO BE NEGOTIATED.

IN ITS SUBMISSION TO THE AUTHORITY, THE AGENCY ASSERTS THAT THE
PETITION DOES NOT PRESENT A PROPER NEGOTIABILITY ISSUE AND, THEREFORE,
SHOULD BE DISMISSED. /1/

IN SUPPORT OF THIS ASSERTION, THE AGENCY ARGUES THAT NO BARGAINING
PROPOSAL IS PENDING BETWEEN THE PARTIES. THE AGENCY CONCLUDES, IN THIS
REGARD, THAT THE UNION IS ESSENTIALLY ATTEMPTING TO RESOLVE AN UNFAIR
LABOR PRACTICE CHARGE THROUGH THE USE OF NEGOTIABILITY PROCEDURES. /2/
FURTHER, THE AGENCY ALLEGES THAT ASSIGNMENT OF WORK IS NONNEGOTIABLE,
AND, ALTHOUGH PROCEDURES PERTAINING TO ASSIGNMENT MIGHT BE NEGOTIABLE,
THE UNION HAS NEVER REQUESTED TO NEGOTIATE THE IMPACT AND IMPLEMENTATION
OF THE POLICY.

RESPONDING TO THE AGENCY'S SUBMISSION, THE UNION ASSERTS THAT THE
NEGOTIABILITY PROCEDURES SET FORTH IN THE STATUTE AND THE AUTHORITY'S
RULES ARE APPROPRIATE FOR THE RESOLUTION OF THE MATTER AT ISSUE. AS TO
THE MERITS OF THE DISPUTE, THE UNION ARGUES THAT IT "HAS NOT QUESTIONED
THE RIGHT OF THE AGENCY TO ASSIGN REVENUE AGENTS THE WORK IN QUESTION.
WHAT NTEU MAINTAINS IS THAT THE METHODS FOR DETERMINING WHICH REVENUE
AGENT IS ASSIGNED ARE NEGOTIABLE." IT FURTHER CONTENDS THAT IT "VERY
CLEARLY REQUESTED TO NEGOTIATE THE MATTER IN QUESTION." /3/

IN ASSOCIATION OF CIVILIAN TECHNICIANS, ALABAMA ACT AND STATE OF
ALABAMA NATIONAL GUARD, CASE NO. O-NG-27, 2 FLRA NO. 39(DECEMBER 28,
1979), REPORT NO. , THE AUTHORITY DECIDED, WITH RESPECT TO A QUESTION
SUBSTANTIALLY IDENTICAL TO THAT PRESENTED HERE, THAT A PETITION WHICH
NEVER PRESENTED A PROPOSAL SUFFICIENTLY SPECIFIC AND DELIMITED IN FORM
AND CONTENT AS TO PERMIT THE AUTHORITY TO RENDER A NEGOTIABILITY
DECISION DID NOT MEET THE CONDITIONS FOR REVIEW. FOR THE REASONS FULLY
SET FORTH IN THAT DECISION, THE AUTHORITY FINDS THAT THE INSTANT
PETITION DOES NOT MEET THE CONDITIONS FOR REVIEW PRESCRIBED IN SECTION
7117 OF THE STATUTE AND PART 2424.1 OF THE AUTHORITY'S RULES OF
PROCEDURE.

ADDITIONALLY, IT IS CLEAR FROM THE RECORD IN THIS CASE THAT THE
PARTIES' CONTENTIONS AND ARGUMENTS FOCUS PRINCIPALLY ON WHETHER, AND ON
WHAT, THE UNION HAS REQUESTED NEGOTIATION IN THE PARTICULAR
CIRCUMSTANCES PRESENTED, RATHER THAN ON ISSUES APPROPRIATE FOR
RESOLUTION UNDER THE NEGOTIABILITY PROCEDURES SET FORTH IN SECTION 7117
OF THE STATUTE AND PART 2424 OF THE AUTHORITY'S RULES AND REGULATIONS
CONCERNING WHETHER PARTICULAR UNION PROPOSALS RELATED TO THE ASSIGNMENT
OF AUDITS TO REVENUE AGENTS ARE THEMSELVES NONNEGOTIABLE, I.E.,
INCONSISTENT WITH LAW, RULE OR REGULATION. HENCE, THE ESSENCE OF THE
PARTIES' CONTENTIONS AND ARGUMENTS CONCERNS UNFAIR LABOR PRACTICE ISSUES
APPROPRIATE FOR RESOLUTION UNDER THE PROCEDURES SET FORTH IN SECTION
7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT.
1207-8).

THAT IS, SINCE THE INSTANT CASE AROSE OUT OF AN ALLEGED UNILATERAL
CHANGE AND ESSENTIALLY INVOLVED A CLAIM OF A REFUSAL TO BARGAIN ON
PROCEDURES RELATED TO SUCH CHANGE AND A DEFENSE THAT BARGAINING HAD NOT
BEEN REQUESTED ON IMPACT AND IMPLEMENTATION, THE PROPER FORUM IN WHICH
TO RAISE THESE ISSUES IS NOT A NEGOTIABILITY APPEAL, BUT WAS AN UNFAIR
LABOR PRACTICE PROCEEDING PURSUANT TO SECTION 7118 OF THE STATUTE. IN
THIS REGARD, AS PREVIOUSLY NOTED (NOTE 2, SUPRA), THE UNION FILED AN
UNFAIR LABOR PRACTICE CHARGE CONCERNING THESE ISSUES. ON DECEMBER 14,
1979, THE REGIONAL DIRECTOR FOR THE ATLANTA REGION REFUSED TO ISSUE A
COMPLAINT ON THE UNFAIR LABOR PRACTICE CHARGE BASED UPON HIS FINDING
THAT THE UNION HAD NOT REQUESTED NEGOTIATION ON THE IMPACT AND
IMPLEMENTATION OF THE AGENCY POLICY.

IN CONCLUSION, THE UNION'S APPEAL DOES NOT MEET THE CONDITIONS FOR
REVIEW UNDER SECTION 7117 OF THE STATUTE AND PART 2424 OF THE
AUTHORITY'S RULES AND REGULATIONS. ACCORDINGLY, THE APPEAL IS
DISMISSED.

ISSUED, WASHINGTON, D.C., JANUARY 18, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ IN THIS REGARD, THE AGENCY CITES THE NEGOTIABILITY PROCEDURES SET
FORTH IN SECTION 7117 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1205) AND PART 2424.1 OF THE AUTHORITY'S RULES AND
REGULATIONS (44 FED. REG. 44765(1979)) SETTING FORTH CONDITIONS
GOVERNING REVIEW OF NEGOTIABILITY ISSUES, WHICH STATES IN PERTINENT PART
AS FOLLOWS:

THE AUTHORITY WILL CONSIDER A NEGOTIABILITY ISSUE UNDER THE
CONDITIONS PRESCRIBED BY 5

U.S.C. 7117(B) AND (C), NAMELY: IF AN AGENCY INVOLVED IN COLLECTIVE
BARGAINING WITH AN

EXCLUSIVE REPRESENTATIVE ALLEGES THAT THE DUTY TO BARGAIN IN GOOD
FAITH DOES NOT EXTEND TO ANY

MATTER PROPOSED TO BE BARGAINED BECAUSE, AS PROPOSED, THE MATTER IS
INCONSISTENT WITH LAW,

RULE OR REGULATION, THE EXCLUSIVE REPRESENTATIVE MAY APPEAL THE
ALLEGATION TO THE AUTHORITY

. . . .

/2/ CONCURRENTLY, THE UNION FILED AN UNFAIR LABOR PRACTICE CHARGE
WITH THE ATLANTA REGIONAL OFFICE (4-CA-217) ALLEGING A SEC. 7116(A)(5)
VIOLATION OF THE AGENCY'S DUTY TO BARGAIN CONCERNING THE SAME AGENCY
ACTION.

/3/ IN THIS REGARD, THE PARTIES APPARENTLY ARE IN AGREEMENT THAT THE
AGENCY HAS THE RIGHT UNDER THE STATUTE TO ASSIGN REVENUE AGENTS THE WORK
IN QUESTION, AND THAT IMPACT AND IMPLEMENTATION OF THE POLICY ARE
GENERALLY PROPER SUBJECTS FOR NEGOTIATION.