Internal Revenue Service and National Treasury Employees Union (Authority decision, January 7, 1982)

Final FLRA decision. This is a final order of the Authority resolving a negotiability appeal. 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 petitioned for a negotiability ruling on a proposal after the IRS and union had agreed not to reopen that subject until March 1982. The Authority held that the agreed reopener date had not arrived, so there was no current negotiability dispute for it to decide. A merits ruling would have been advisory. It dismissed the petition without prejudice to a later appeal if the IRS again alleged nonnegotiability after the union resubmitted the proposal.

Decision snapshot

• Authority: 5 U.S.C. § 7105(a)(2)(E), 5 U.S.C. § 7117.
• Outcome: Petition dismissed without prejudice as premature.
• Key point: A deferred bargaining subject did not present a live negotiability issue.

Full text (FLRA public release)

[ v07 p610 ]

07:0610(94)NG

The decision of the Authority follows:

7 FLRA No. 94

DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE
(Activity)

and

NATIONAL TREASURY EMPLOYEES UNION
(Union)

Case No. O-NG-296

ORDER DISMISSING APPEAL

THIS CASE IS BEFORE THE AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101
ET SEQ.) ON A PETITION FOR REVIEW OF A NEGOTIABILITY ISSUE FILED BY THE
UNION. FOR THE REASONS INDICATED BELOW, THE PETITION MUST BE DISMISSED.

THE RECORD BEFORE THE AUTHORITY DISCLOSES THAT DURING THE COURSE OF
NEGOTIATIONS RELATED TO THE ACTIVITY'S PROPOSED "PRIORITY PLACEMENT
PROGRAM," THE ACTIVITY MAINTAINED THAT A UNION PROPOSAL CONCERNING THE
SELECTION OF EMPLOYEES FOR SUCH PLACEMENT WAS NONNEGOTIABLE. HOWEVER,
THE PARTIES BARGAINING RESULTED IN AN AGREEMENT ON A NUMBER OF ISSUES
AND THE AGREEMENT INCLUDED THE FOLLOWING CLAUSE (SECTION 8A):

THE UNION MAY REOPEN THE NEGOTIATION OF THIS AGREEMENT ANYTIME DURING
THE MONTH OF MARCH,

1982 TO ADDRESS THE SELECTION PROCEDURES AND CRITERIA OF ELIGIBLE
EMPLOYEES . . .

AFTER THE AGREEMENT WAS SIGNED BY THE UNION BUT PRIOR TO ITS
EXECUTION BY THE ACTIVITY, THE ACTIVITY PROVIDED THE UNION WITH A
WRITTEN ALLEGATION OF NONNEGOTIABLITY AS TO THE DISPUTED PROPOSAL. IN
THAT INTERIM PERIOD, THE ACTIVITY ALSO PREPARED A MEMORANDUM, WHICH WAS
SIGNED BY BOTH ACTIVITY AND UNION REPRESENTATIVES, SETTING FORTH THEIR
POSITIONS CONCERNING THE DISPUTED PROPOSAL AND THE SECTION 8A REOPENER
CLAUSE OF THE AGREEMENT. THE SUBJECT MEMORANDUM STATES, IN PERTINENT
PART:

. . . (T)HE IRS FORMALLY DECLARED ONE OF YOUR PROPOSALS
NONNEGOTIABLE. BASED ON

MANAGEMENT'S ASSERTION, WE UNDERSTAND THAT YOU INTEND TO SEEK A
NEGOTIABILITY DETERMINATION

FROM THE FEDERAL LABOR RELATIONS AUTHORITY. IN THE EVENT THE FLRA
FINDS YOUR PROPOSAL

NEGOTIABLE YOU MAY DECIDE TO RE-SUBMIT THE PROPOSAL IF YOU CHOOSE TO
RE-OPEN THE AGREEMENT

PURSUANT TO SECTION 8A. HOWEVER, IT IS FURTHER UNDERSTOOD THAT YOU
WILL NOT SUBMIT THE

PROPOSAL PRIOR TO THE TIME PERIOD SPECIFIED IN SECTION 8A FOR
RE-OPENING THE AGREEMENT.

SUBSEQUENT TO SIGNING THAT MEMORANDUM, THE UNION FILED THE INSTANT
PETITION WITH THE AUTHORITY.

WE HAVE DETERMINED THAT THE CIRCUMSTANCES HERE INVOLVED DO NOT GIVE
RISE AT THIS TIME TO A NEGOTIABILITY ISSUE UPON WHICH THE AUTHORITY CAN
RULE PURSUANT TO SECTION 7117 OF THE STATUTE. RATHER, THE UNION'S
NEGOTIABILITY APPEAL IS PREMATURE SINCE THE PARTIES EXPRESSLY AGREED IN
THE MEMORANDUM THAT THE MATTER IN DISPUTE WOULD NOT AGAIN BECOME A
SUBJECT OF NEGOTIATIONS UNTIL MARCH 1982 WHEN THE CONTRACT REOPENER
PROVISION BECAME OPERATIVE AND RESUBMISSION OF THE PROPOSAL COULD OCCUR.
FOR THE AUTHORITY TO RULE ON THE MERITS OF THE UNION'S PROPOSAL IN
THESE CIRCUMSTANCES WOULD BE TANTAMOUNT TO RENDERING AN ADVISORY OPINION
CONTRARY TO SECTION 2429.10 OF THE AUTHORITY'S RULES AND REGULATIONS.

ACCORDINGLY, IT IS HEREBY ORDERED THAT THE UNION'S PETITION BE
DISMISSED WITHOUT PREJUDICE TO THE RESUBMISSION OF THE PROPOSAL TO THE
ACTIVITY FOR NEGOTIATION IN ACCORDANCE WITH THE PARTIES' AGREEMENT AND
TO THE RENEWAL OF ITS CONTENTIONS AS TO THE MERITS OF THE PROPOSAL IN A
PETITION DULY FILED WITH THE AUTHORITY SHOULD THE ACTIVITY ALLEGE AT
THAT TIME THAT THE PROPOSAL IS NONNEGOTIABLE.

FOR THE AUTHORITY.

ISSUED, WASHINGTON, D.C., JANUARY 7, 1982

JAMES J. SHEPARD, EXECUTIVE DIRECTOR