National Treasury Employees Union (Union) and Department of the Treasury, Internal Revenue Service, Jacksonville District, Florida (Agency) (Authority decision, January 27, 1981)

Final FLRA decision. This negotiability order ends the petition before the Authority. An aggrieved person may seek judicial review in a court of appeals within 60 days of issuance under 5 U.S.C. § 7123(a).

Plain-English summary

The IRS and a union settled an earlier bargaining complaint by agreeing to discuss the number of government cars available to revenue officers. They later disagreed over whether that agreement meant the IRS had elected to bargain about the union’s car proposal. The Authority held that the dispute concerned enforcement and intent of the settlement, issues for an unfair labor practice case. It dismissed the negotiability appeal without prejudice and without ruling on the proposal’s merits.

Decision snapshot

• Authority: 5 U.S.C. § 7106(b)(1), 5 U.S.C. § 7117, 5 U.S.C. § 7118.
• Outcome: Negotiability appeal dismissed without prejudice; no merits ruling.
• Key point: The dispute over whether an agency elected to bargain belonged in unfair labor practice procedures.

Full text (FLRA public release)

[ v05 p26 ]

05:0026(3)NG

The decision of the Authority follows:

5 FLRA No. 3

NATIONAL TREASURY EMPLOYEES UNION
Union

and

DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
JACKSONVILLE DISTRICT, FLORIDA
Agency

Case No. 0-NG-202

DECISION AND ORDER ON NEGOTIABILITY APPEAL

THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
SEQ.).

THE BASIC FACTS IN THIS CASE, AS SET FORTH IN THE PARTIES
SUBMISSIONS, ARE THAT AS THE RESULT OF AN UNFAIR LABOR PRACTICE
COMPLAINT FILED BY THE UNION ALLEGING A REFUSAL TO BARGAIN CONCERNING A
CHANGE IN THE UTILIZATION BY ITS REVENUE OFFICERS OF VEHICLES SUPPLIED
BY THE GENERAL SERVICES ADMINISTRATION (GSA), THE PARTIES SIGNED A
MEMORANDUM OF UNDERSTANDING IN WHICH THE AGENCY AGREED "TO NEGOTIATE
OVER THE IMPACT AND IMPLEMENTATION OF GSA CAR ISSUES, INCLUDING BUT NOT
LIMITED TO THE FOLLOWING THREE ISSUES: . . . 3. NUMBER OF CARS
AVAILABLE TO REVENUE OFFICERS TO PERFORM THEIR OFFICIAL DUTIES." THE
UNION THEN SUBMITTED A PROPOSAL SPECIFYING THE NUMBER OF CARS THAT WOULD
BE AVAILABLE TO REVENUE OFFICERS UNDER CERTAIN CONDITIONS. THEREAFTER,
THE AGENCY DECLARED THE UNION'S PROPOSAL TO BE NONNEGOTIABLE UNDER
SECTION 7106(B)(1) OF THE STATUTE AS A MATTER SUBJECT TO BARGAINING ONLY
AT THE ELECTION OF THE AGENCY, AND OVER WHICH IT CONTENDS IT ELECTED NOT
TO BARGAIN. THE UNION AGREES THAT ITS PROPOSAL IS NEGOTIABLE ONLY AT
THE ELECTION OF THE AGENCY, WITHIN THE AMBIT OF SECTION 7106(B)(1) OF
THE STATUTE. HOWEVER, THE UNION ASSERTS THE AGENCY MADE ITS ELECTION BY
SIGNING THE MEMORANDUM OF UNDERSTANDING AGREEING TO BARGAIN OVER THE
NUMBER OF CARS IN SETTLEMENT OF THE UNFAIR LABOR PRACTICE.

BASED ON THE RECORD IN THIS CASE, THE PRINCIPAL ISSUE HEREIN CONCERNS
THE EFFECT OF THE PARTIES' SETTLEMENT AGREEMENT ON THE AGENCY'S
OBLIGATION TO BARGAIN OVER A MATTER OTHERWISE NEGOTIABLE AT THE ELECTION
OF THE AGENCY. THUS, BOTH PARTIES AGREE THAT THE INSTANT PROPOSAL IS
NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY. HOWEVER, THEY DISAGREE
OVER WHETHER THE AGENCY'S PRIOR AGREEMENT TO BARGAIN OVER THE "NUMBER OF
CARS AVAILABLE TO REVENUE OFFICERS TO PERFORM THEIR OFFICIAL DUTIES . .
. ," IN SETTLEMENT OF THE EARLIER UNFAIR LABOR PRACTICE, CONSTITUTED ITS
ELECTION TO BARGAIN OVER THE INSTANT PROPOSAL. THEREFORE, THE SUBSTANCE
OF THE PARTIES' CONTENTIONS CONCERNS UNFAIR LABOR PRACTICE ISSUES
APPROPRIATE FOR RESOLUTION UNDER PROCEDURES SET FORTH UNDER SECTION 7118
OF THE STATUTE. UNDER THE CIRCUMSTANCES THERE IS NO ISSUE BEFORE THE
AUTHORITY, APPROPRIATE FOR RESOLUTION UNDER THE PROCEDURES SET FORTH IN
SECTION 7117 OF THE STATUTE AND PART 2424 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.1 ET SEQ), CONCERNING WHETHER A PARTICULAR UNION
PROPOSAL IS ITSELF NONNEGOTIABLE BECAUSE IT IS INCONSISTENT WITH LAW,
RULE OR REGULATION. THAT IS, THE PROPER FORUM IN WHICH TO RAISE THE
ISSUES HERE INVOLVED IS NOT A NEGOTIABILITY APPEAL BUT WOULD BE AN
UNFAIR LABOR PRACTICE PROCEEDING PURSUANT TO SECTION 7118 OF THE
STATUTE. IN THIS CONNECTION, RESOLUTION OF THE INSTANT DISPUTE MAY
DEPEND UPON THE RESOLUTION OF FACTUAL ISSUES RELATED TO THE PARTIES'
CONDUCT AND THE MEANING AND INTENT OF THE MEMORANDUM OF UNDERSTANDING
SIGNED BY THEM. SUCH FACTUAL DETERMINATION CAN BEST BE ACCOMPLISHED
THROUGH THE USE OF THE INVESTIGATORY AND FORMAL HEARING PROCEDURES SET
FORTH IN PART 2423 OF THE AUTHORITY'S RULES AND REGULATIONS WHICH GOVERN
UNFAIR LABOR PRACTICE PROCEEDINGS (5 CFR 2423.1 ET SEQ.). SEE, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1931 AND DEPARTMENT
OF THE NAVY, NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, 2 FLRA NO.
19(1979), NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE
TREASURY, U.S. CUSTOMS SERVICE, WASHINGTON, D.C., 3 FLRA NO. 52(1980)
AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO LOCAL 2578 AND
GENERAL SERVICE ADMINISTRATION, NATIONAL ARCHIVES AND RECORDS SERVICE,
WASHINGTON, D.C., 4 FLRA NO. 84(1980).

BASED ON THE FOREGOING, THIS NEGOTIABILITY APPEAL DOES NOT PRESENT
ISSUES THAT THE AUTHORITY CAN APPROPRIATELY RESOLVE AT THIS TIME UNDER
SECTION 7117 OF THE STATUTE AND PART 2424 OF ITS RULES AND REGULATIONS.
ACCORDINGLY, IT IS ORDERED THAT THE UNION'S APPEAL BE DISMISSED WITHOUT
PREJUDICE TO THE UNION'S RIGHT TO RESUBMIT TO THE AUTHORITY ANY
NEGOTIABILITY DISPUTE WHICH REMAINS CONCERNING THE UNION'S PROPOSALS,
AFTER RESORTING TO THE PROCEDURES DISCUSSED ABOVE.

ISSUED, WASHINGTON, D.C., JANUARY 27, 1981

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY