IRS Atlanta Service Center and NTEU (Authority decision, June 21, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice case. 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

The IRS changed a carpool program while a union negotiability appeal was pending. The complaint alleged that implementation during the appeal itself violated the statute. The Authority found no violation on that narrow theory and dismissed the complaint, while noting that a different unilateral change allegation had not been pleaded.

Decision snapshot

• Authority: Bargaining claims under 5 U.S.C. § 7116(a)(1) and (5).
• Outcome: Complaint dismissed.
• Key point: A pending negotiability appeal alone did not establish the charged violation.

Full text (FLRA public release)

[ v18 p731 ]

18:0731(83)CA

The decision of the Authority follows:

18 FLRA No. 83

DEPARTMENT OF TREASURY
INTERNAL REVENUE SERVICE
ATLANTA SERVICE CENTER
Respondent

and

NATIONAL TREASURY EMPLOYEES UNION
Charging Party

Case No. 4-CA-589

DECISION AND ORDER

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

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

The National Treasury Employees Union (the Union) is the exclusive representative of the professional and nonprofessional employees in the Department of Treasury, Internal Revenue Service, Atlanta Service Center (the Respondent). On or about August 14, 1979, the Respondent informed the Union that it planned to institute a carpool program. The Union requested bargaining on the impact and implementation of the carpool program and submitted five proposals to the Respondent. The Respondent advised the Union that all of the proposals were nonnegotiable. The Union informed the Respondent that it intended to, and it did, file a negotiability appeal with the Authority. /1/ The carpool program was implemented by the Respondent on August 25, 1980.

The sole allegation in the complaint is that the Respondent violated section 7116(a)(1) and (5) of the Statute /2/ by implementing a carpool program notwithstanding the Union's pending negotiability appeal.

It is well established under the Statute that an agency may not unilaterally change established conditions of employment of unit employees where the change as here, is within the duty to bargain, without first notifying the exclusive representative of the change and affording it an opportunity to bargain concerning the decision to effectuate the change. /3/ An agency acts at its peril whenever it unilaterally changes established conditions of employment without first affording the exclusive representative notice of the proposed change and an opportunity to request bargaining. Thus, if an agency changes conditions of employment without affording the Union the opportunity to bargain and it is subsequently determined that the agency should have negotiated over the proposed change, the agency's failure to do so is a violation of section 7116(a)(1) and (5) of the Statute. /4/ Conversely, if it is subsequently determined that the agency had no duty to bargain over the change, the agency's failure to have done so before making the change is not a violation of the Statute. /5/

The complaint in the instant case does not allege that the Respondent violated the Statute by failing to bargain on a negotiable matter before implementation of the carpool program; rather, the sole allegation is that the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing the change in the face of the Union's pending negotiability appeal. Thus, the Charging Party asserts that the Respondent's unilateral implementation of a change prior to the resolution of a pending negotiability appeal concerning the subject matter of the change and irrespective of how the negotiability dispute is subsequently resolved constitutes a violation of the Statute.

The Authority finds no merit in this position. Indeed, to find a violation in these circumstances could lead to the incongruous result that an agency could be found in violation of the Statute while a union's negotiability appeal on the matter is pending, but could subsequently be found not to have violated the Statute if the matter at issue is later found nonnegotiable. Thus, the Authority finds that the implementation of changes affecting unit employees during the pendency of a negotiability appeal does not in and of itself constitute a violation of section 7116(a)(1) and (5) of the Statute. Moreover, the Authority finds that this determination furthers the purposes of the Statute, as it would allow management to take action while still providing the Union with a complete statutory remedy if it is subsequently determined that management had a duty to bargain over the decision to make the changes before doing so. /6/

The Authority notes that if the complaint in this case had alleged that the Respondent violated the Statute by unilaterally changing a condition of employment without bargaining on a negotiable matter, a violation would have been warranted as to the one proposal found negotiable by the Authority. /7/ However, inasmuch as the complaint is restricted to the allegation that the Respondent violated the Statute by implementing the carpool program during the pendency of the Union's negotiability appeal without regard to whether the matter was determined to be negotiable, the Authority concludes that the complaint must be dismissed.

ORDER

IT IS ORDERED that the complaint in Case No. 4-CA-589 be, and it hereby is, dismissed.

Issued, Washington, D.C., June 21, 1985

Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY