National Treasury Employees Union and National Treasury Employees Union, Chapter 71 (Union) and Internal Revenue Service, Philadelphia Service Center, Philadelphia, Pennsylvania (Agency) (Authority decision, December 31, 1980)

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

A union asked to bargain locally over performance expectations at the IRS Philadelphia Service Center while national agreement talks addressed related matters. The parties disagreed over what the agency had changed and whether the local bargaining request was required. The Authority held that those factual and bargaining duty questions belonged in an unfair labor practice proceeding. It dismissed the negotiability appeal without prejudice and did not decide the proposals’ merits.

Decision snapshot

• Authority: 5 U.S.C. § 7117, 5 U.S.C. § 7118.
• Outcome: Negotiability appeal dismissed without prejudice; proposal merits unresolved.
• Key point: The dispute required factual inquiry into bargaining obligations rather than a negotiability ruling.

Full text (FLRA public release)

[ v04 p796 ]

04:0796(103)NG

The decision of the Authority follows:

4 FLRA No. 103

NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 71
Union

and

INTERNAL REVENUE SERVICE,
PHILADELPHIA SERVICE CENTER,
PHILADELPHIA PENNSYLVANIA
Agency

Case No. O-NG-113

DECISION AND ORDER DISMISSING 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 RECORD BEFORE THE AUTHORITY IN THIS CASE INDICATES THAT THE
NATIONAL TREASURY EMPLOYEES UNION (THE UNION) AND THE INTERNAL REVENUE
SERVICE (THE AGENCY) WERE PARTIES TO A COLLECTIVE BARGAINING AGREEMENT,
MULTI-CENTER AGREEMENT II, WHICH COVERED EMPLOYEES AT THE AGENCY'S
PHILADELPHIA SERVICE CENTER. /1/ ACCORDING TO THE AGENCY, THOUGH THIS
AGREEMENT EXPIRED IN OCTOBER, 1978, ITS TERMS AND CONDITIONS CONTINUE IN
EFFECT DURING NATIONAL LEVEL BARGAINING ON A NEW AGREEMENT. /2/

WHILE THE PARTIES WERE ENGAGED IN BARGAINING ON A NEW AGREEMENT AT
THE NATIONAL LEVEL, I.E., AT THE LEVEL OF EXCLUSIVE RECOGNITION,
INCLUDING BARGAINING ON MATTERS PERTAINING TO PERFORMANCE APPRAISAL
SYSTEMS, THE UNION REQUESTED THE OPPORTUNITY TO BARGAIN WITH MANAGEMENT
OFFICIALS AT THE PHILADELPHIA SERVICE CENTER OVER THE SUBSTANCE, IMPACT,
AND IMPLEMENTATION OF "PERFORMANCE EXPECTATIONS" WHICH MANAGEMENT
PROPOSED TO EFFECTUATE AT THE CENTER. THE UNION SUBMITTED TO AGENCY
MANAGEMENT AT THE SERVICE CENTER SEVERAL PROPOSALS WHICH RELATED TO THE
SUBSTANCE OF THE PROPOSED "PERFORMANCE EXPECTATIONS" AND TO THE
PROCEDURES TO BE USED IN DISCIPLINING EMPLOYEES WHO FAIL TO MEET THE
REQUIREMENTS OF APPLICABLE "PERFORMANCE EXPECTATIONS." SUBSEQUENTLY, THE
AGENCY ADVISED THE UNION OF ITS INTENT TO IMPLEMENT THE PROPOSED
"PERFORMANCE EXPECTATIONS," ALLEGING IN ESSENCE THAT SUCH "EXPECTATIONS"
ARE NOT SUBJECT TO NEGOTIATION.

THE UNION FILED THE INSTANT PETITION FOR REVIEW WITH THE AUTHORITY.
THE AGENCY, IN ITS STATEMENT OF POSITION, ASSERTS THAT THE SUBJECT
MATTER OF THE UNION'S PROPOSALS IS CURRENTLY BEING NEGOTIATED BY THE
PARTIES AT THE NATIONAL LEVEL AND, THEREFORE, THAT IT HAS NO OBLIGATION
TO NEGOTIATE THE SAME MATTERS WITH THE UNION AT THE PHILADELPHIA SERVICE
CENTER, I.E., BELOW THE LEVEL OF EXCLUSIVE RECOGNITION. IN THIS
CONNECTION, THE AGENCY CONTENDS THAT CERTAIN PARTS OF THE UNION'S
PROPOSALS RELATING TO PROCEDURES ARE COVERED BY THE TERMS OF THE
PARTIES' MULTI-CENTER AGREEMENT II. THE AGENCY ARGUES IN THIS REGARD
THAT IT HAS NO OBLIGATION TO BARGAIN ON THOSE PARTS OF THE UNION'S
PROPOSALS BECAUSE IT HAS EFFECTED NO CHANGE RELATED TO THE SUBJECT
MATTER OF THOSE PROPOSALS AND, THUS, SUCH MATTERS CONTINUE TO BE
GOVERNED BY THE TERMS OF THE PARTIES' AGREEMENT. IN RESPONSE, THE UNION
CONTENDS THE AGENCY HAS NOT FULFILLED ITS OBLIGATION TO BARGAIN BY
NEGOTIATING WITH THE UNION AT THE NATIONAL LEVEL, SINCE THE AGENCY HAS
REFUSED TO NEGOTIATE AT THAT LEVEL ON THE SUBSTANCE OF PERFORMANCE
STANDARDS.

WHILE THE RECORD IN THIS CASE IS NOT CLEAR IN ALL RESPECTS, THE
UNDERLYING DISPUTE BETWEEN THE PARTIES CONCERNS WHETHER THE AGENCY HAS
AN OBLIGATION TO BARGAIN WITH THE UNION CONCERNING PERFORMANCE STANDARDS
AT THE LEVEL OF THE PHILADELPHIA SERVICE CENTER WHILE BARGAINING OVER
THAT SAME MATTER IS TAKING PLACE AT THE NATIONAL LEVEL OF EXCLUSIVE
RECOGNITION. THAT IS, THE AGENCY PROPOSED A UNILATERAL CHANGE IN THE
PERFORMANCE STANDARDS APPLICABLE TO EMPLOYEES AT THE PHILADELPHIA
SERVICE CENTER DURING THE TIME IT WAS IN ENGAGED IN COLLECTIVE
BARGAINING WITH THE UNION AT THE NATIONAL LEVEL ON THE SUBJECT MATTER OF
THE PROPOSED CHANGE. THE AGENCY'S ACTION IS ASSOCIATED WITH, IN
ESSENCE, A REFUSAL TO BARGAIN ON THE SUBSTANCE OF PERFORMANCE STANDARDS
AT THE LOCAL LEVEL AND A DEFENSE THAT THE AGENCY'S OBLIGATION TO BARGAIN
OVER THE SUBJECT MATTER IS BEING DISCHARGED AT THE LEVEL OF EXCLUSIVE
RECOGNITION. THUS, THE FUNDAMENTAL ISSUE BETWEEN THE PARTIES CONCERNS
THE EXISTENCE OF AN OBLIGATION TO BARGAIN AT THE LOCAL LEVEL IN THE
CIRCUMSTANCES OF THIS CASE. THE PROPER FORUM IN WHICH TO RAISE THIS
ISSUE IS NOT A NEGOTIABILITY APPEAL BUT WOULD BE AN UNFAIR LABOR
PRACTICE PROCEEDING PURSUANT TO SECTION 7118 OF THE STATUTE. SEE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2879 AND
SOCIAL SECURITY ADMINISTRATION, SAN DIEGO, CALIFORNIA, 2 FLRA NO.
93(1980).

ADDITIONALLY, THE AGENCY CONTENDS THAT IT HAS PROPOSED NO CHANGE
WHICH WOULD GIVE RISE TO AN OBLIGATION TO BARGAIN CONCERNING THE UNION'S
PROCEDURAL PROPOSALS AND THAT SUCH MATTERS CONTINUE TO BE GOVERNED BY
THE PARTIES' NEGOTIATED AGREEMENT. IN THIS RESPECT, THE CIRCUMSTANCES
HEREIN ARE NOT MATERIALLY DIFFERENT FROM THE CIRCUMSTANCES IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL COUNCIL OF EEOC
LOCALS AND EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 4 FLRA NO. 61(1980)
AND NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY,
U.S. CUSTOMS SERVICE, WASHINGTON, D.C., 4 FLRA NO. 62(1980). IN THOSE
CASES, THE AUTHORITY DETERMINED THAT THE PARTIES' DISPUTE ESSENTIALLY
CONCERNED WHETHER THERE HAD BEEN A CHANGE IN EXISTING POLICY SO AS TO
GIVE RISE TO A DUTY TO BARGAIN AND FOUND THAT THE PROPER FORUM IN WHICH
TO RAISE THIS ISSUE, AND TO RESOLVE THE FACTUAL QUESTIONS INVOLVED,
WOULD BE AN UNFAIR LABOR PRACTICE PROCEEDING UNDER SECTION 7118 OF THE
STATUTE. SIMILARLY, TO THE EXTENT THAT THE INSTANT CASE INVOLVES ISSUES
AS TO WHETHER THE AGENCY HAS PROPOSED ANY CHANGES IN CONTRACTUAL
PROCEDURES SO AS TO GIVE RISE TO A DUTY TO BARGAIN, IT INVOLVES ISSUES
AND QUESTIONS OF FACT WHICH CAN BE BEST RESOLVED THROUGH USE OF THE
INVESTIGATORY AND HEARING PROCEDURES SET FORTH IN PART 2423 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2423), WHICH GOVERN UNFAIR
LABOR PRACTICE PROCEEDINGS UNDER SECTION 7118 OF THE STATUTE.

THEREFORE, FOR THE FOREGOING REASONS, THE UNION'S APPEAL DOES NOT
PRESENT ISSUES WHICH THE AUTHORITY CAN APPROPRIATELY RESOLVE AT THIS
TIME UNDER SECTION 7117 OF THE STATUTE AND PART 2424 OF ITS RULES AND
REGULATIONS, 5 CFR 2424.1 ET SEQ. ACCORDINGLY, IT IS ORDERED THAT THE
APPEAL BE DISMISSED WITHOUT PREJUDICE TO THE UNION'S RIGHT TO RESUBMIT
TO THE AUTHORITY ANY NEGOTIABILITY DISPUTE WHICH REMAINS CONCERNING ITS
PROPOSALS, AFTER RESORTING TO THE PROCEDURES DISCUSSED ABOVE.

ISSUED, WASHINGTON, D.C., DECEMBER 31, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ THE PHILADELPHIA SERVICE CENTER IS PART OF A CONSOLIDATED UNIT
WITH EXCLUSIVE RECOGNITION AT THE NATIONAL LEVEL OF THE INTERNAL REVENUE
SERVICE. SEE OFFICE OF PERSONNEL MANAGEMENT, UNION RECOGNITION IN THE
FEDERAL GOVERNMENT (1979), AT 100.

/2/ AGENCY STATEMENT OF POSITION AT 1.