National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, Cleveland District Office (Authority decision, August 28, 1984)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority on a negotiability petition. 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 removed file cabinets and other materials used by local NTEU chapters at two Cleveland District offices. The union sought bargaining and filed both a negotiability appeal and an unfair labor practice charge. A Regional Director concluded that the national labor agreement covered office facilities and that the agency had no duty to bargain over the change. The General Counsel upheld that determination. Because there was no bargaining duty to resolve, the Authority found the negotiability appeal moot and dismissed it without deciding whether any proposal was negotiable.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7105(a)(2)(E).
• Outcome: Petition dismissed as moot without a negotiability ruling.
• Key point: An appeal over a proposal was moot after the Regional Director determined there was no duty to bargain over the subject.

Full text (FLRA public release)

[ v15 p610 ]

15:0610(130)NG

The decision of the Authority follows:

15 FLRA No. 130

NATIONAL TREASURY EMPLOYEES
UNION
Union

and

DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
CLEVELAND DISTRICT OFFICE
Agency

Case No. O-NG-428

ORDER DISMISSING NEGOTIABILITY APPEAL

The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination.

The negotiability appeal in this case arose out of the removal by the Agency of file cabinets and material belonging to local chapters of the Union at the Agency's Youngstown and Toledo offices in the Cleveland District. By way of background, prior to 1981 when individual District Office bargaining units were consolidated into a nationwide bargaining unit, the local Union chapters at Youngstown and Toledo were permitted to keep file cabinets in their local offices and in some instances were supplied file cabinets by the Agency. In 1981, subsequent to the negotiation of a national collective bargaining agreement known as the NORD (National Office, Regions and Districts), the Agency first notified the local Union chapters at the Youngstown and Toledo offices that file cabinets and other materials would have to be removed. The Union requested bargaining over this change and the Agency refused, claiming that its actions were in accordance with the new national agreement which made no provision for supplying file cabinets or other materials to local chapters of the Union. Thereafter, the Agency removed the materials from its Youngstown and Toledo facilities and put them in storage. The Union filed a negotiability appeal and an unfair labor practice charge alleging that this conduct constituted a unilateral change in past practice. Pursuant to section 2424.5 of the Authority's Rules and Regulations, the Union elected to proceed with the unfair labor practice charge and to suspend further action on the negotiability appeal.

Upon investigation of the unfair labor practice charge, the Regional Director concluded that the Agency was not required to bargain over the change because the matter of providing office facilities, including file cabinets, was covered in the national agreement between the parties which superceded the past practice in effect when the parties bargained at the district level. The Union thereupon appealed the Regional Director's determination to the General Counsel. The General Counsel denied the appeal, agreeing with the Regional Director that the matter of providing office facilities was included in the NORD agreement after extensive bargaining on the matter. The General Counsel noted that the dispute essentially revolved around the parties' differing and arguable interpretations of the contract and was more properly resolved through the dispute resolution procedure provided for in the agreement.

In the absence of a duty to bargain between the parties, issues as to whether a particular proposal is inconsistent with applicable law, rule or regulation are not appropriate for resolution by the Authority. National Federation of Federal Employees, Local 1363 and Headquarters, U.S. Army Garrison, Yongsan, Korea, 8 FLRA 200 (1982), and National Federation of Federal Employees, Local 1363 and Headquarters, U.S. Army Garrison, Yongsan, Korea, 8 FLRA 134 (1982). Thus, inasmuch as the Regional Director has determined that there was no obligation on the Agency to bargain, it is concluded that the instant appeal is now moot.

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed.

Issued, Washington, D.C., August 28, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY