Internal Revenue Service, Richmond District and National Treasury Employees Union (Authority decision, December 10, 1982)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving an unfair labor practice complaint under 5 U.S.C. § 7116. 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 invoked arbitration over a grievance filed while an IRS employee was in the bargaining unit. The Richmond District later refused to participate because the employee had become a supervisor. The Authority held that refusing to use the negotiated grievance procedure violated the statute despite that later change in status. It ordered the IRS to proceed to arbitration on request and post a notice.

Decision snapshot

• Authority: 5 U.S.C. § 7116(a)(1).
• Outcome: Unfair labor practice found; arbitration and notice ordered.
• Key point: A later promotion out of the unit did not excuse refusing arbitration of a previously filed grievance.

Full text (FLRA public release)

[ v10 p637 ]

10:0637(104)CA

The decision of the Authority follows:

10 FLRA No. 104

INTERNAL REVENUE SERVICE
AND IRS RICHMOND DISTRICT
Respondent

and

NATIONAL TREASURY EMPLOYEES UNION
Charging Party

Case No. 3-CA-1793

DECISION AND ORDER

This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations.

Upon consideration of the entire record in this case, including the stipulation of facts and the parties' contentions, the Authority finds:

The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) when it refused to participate in the arbitration of an employee's grievance. The grievance was initiated by the Charging Party (NTEU) on behalf of employee Sandra West on April 25, 1978. On November 14, 1978, NTEU notified the Respondent (IRS) that it was invoking arbitration in the matter. By letter dated October 31, 1980, IRS informed NTEU that it would not be a party to the arbitration inasmuch as the grievant had become a supervisor almost one year earlier. NTEU notified IRS that, because the grievance had arisen while the employee was still in the bargaining unit, it intended to pursue arbitration. IRS, however, notified the arbitrator that it would not take part in the arbitration and considered the proceedings terminated.

In Department of Labor, Employment Standards Administrative/Wage and Hour Division, Washington, D.C., 10 FLRA No. 60 (1982), the Authority found that a refusal by either party to participate in the negotiated contractual procedures for the settlement of grievances, including arbitration, conflicts with the requirements of section 7121 of the Statute and therefore is violative of section 7116(a)(1) and (8) of the Statute. With respect to the instant case, the Authority finds that, based on the reasons fully set forth in Department of Labor, by its actions in refusing to proceed to arbitration the Respondent failed to comply with the requirements of section 7121 and therefore violated section 7116(a)(1) and (8) of the Statute. /1/

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the Internal Revenue Service and IRS Richmond District, shall:

1. Cease and desist from:

(a) Refusing or failing to proceed to arbitration regarding a grievance filed by the National Treasury Employees Union, the exclusive representative of its employees, contrary to the requirements of section 7121 of the Federal Service Labor-Management Relations Statute, after receiving timely notice of the exclusive representative's desire to invoke arbitration.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the
   purposes and policies of the Federal Service Labor-Management Relations Statute.

(a) Upon request, proceed to arbitration regarding the grievance filed by the National Treasury Employees Union on behalf of Sandra L. West.

(b) Post at its Richmond, Virginia, facility, copies of the attached Notice, on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by an authorized representative and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(c) Notify the Regional Director of Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, D.C., December 10, 1982

Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY

NOTICE TO ALL EMPLOYEES

PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse or fail to proceed to arbitration regarding a grievance filed by the National Treasury Employees Union, the exclusive representative of our employees, contrary to the requirements of section 7121 of the Federal Service Labor-Management Relations Statute, after receiving timely notice of the exclusive representative's desire to invoke arbitration.

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

WE WILL, upon request, proceed to arbitration regarding the grievance filed by the National Treasury Employees Union on behalf of Sandra L. West. (Agency or Activity)

Dated: . . . By: (Signature)

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

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is: P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8507.

--------------- FOOTNOTES$ ---------------

/1/ In view of this conclusion, it is not necessary to consider whether the Respondent's conduct also constituted a violation of section 7116(a)(5).