NTEU Chapter 66 and IRS Kansas City (Authority decision, December 3, 1982)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in a negotiability proceeding. 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 Chapter 66 appealed an IRS claim that its staff-sharing proposals were outside the duty to bargain. The agency served its written allegation in person on February 3, 1981, but the union filed its appeal on February 23, five days after the deadline. The Authority dismissed the petition as untimely without deciding negotiability. The dismissal was without prejudice to a new written allegation and timely petition if the dispute continued.

Decision snapshot

• Authority: 5 U.S.C. § 7105(a)(2)(E).
• Outcome: Petition dismissed without prejudice as untimely.
• Key point: The union had 15 days from service of the written allegation to appeal.

Full text (FLRA public release)

[ v10 p562 ]

10:0562(98)NG

The decision of the Authority follows:

10 FLRA No. 98

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 66
(Union)

and

INTERNAL REVENUE SERVICE,
KANSAS CITY, MISSOURI
(Activity)

Case No. O-NG-439

ORDER DISMISSING PETITION FOR REVIEW

This matter is before the Federal Labor Relations Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute and section 2424.1 of the Authority's Rules and Regulations on a petition for review of negotiability issues filed by the union. For the reason indicated below, it has been determined that the union's petition for review was untimely filed and therefore must be dismissed.

From the record before the Authority, it appears that during negotiations concerning a proposed staff sharing arrangement between two offices, the union submitted a number of proposals to the activity for consideration. In response to the union's proposals, the activity, by memorandum dated January 29, 1981, which apparently was served upon the union in person on February 3, 1981, alleged that the proposals were nonnegotiable. The union's petition for review of the activity's allegations of nonnegotiability was filed with the Authority on February 23, 1981.

In its statement of position, the activity argues, among other things, that the union's petition for review was filed beyond the time limit prescribed in section 2424.3 of the Authority's Rules and Regulations and should be dismissed as untimely. In that regard, the activity alleges that the petition for review was filed more than 15 days after the union received the activity's written allegation of nonnegotiability.

Section 2424.3 of the Authority's Rules and Regulations, which implements section 7117(c)(2) of the Statute, provides, in pertinent part:

The time limit for filing a petition for review is fifteen (15) days after the date the agency's allegation that the duty to bargain in good faith does not extend to the matter proposed to be bargained is served on the exclusive representative. The exclusive representative shall request such allegation in writing and the agency shall make the allegation in writing and serve a copy on the exclusive representative. . . .

As set forth above, the activity's allegation /1/ was dated January 29, 1981, and appears to have been served in person upon the union on February 3, 1981. Therefore, under section 2424.3 of the Rules and Regulations, any appeal from that allegation had to be filed with the Authority no later than the close of business on February 18, 1981, in order to be considered timely. Since the union's appeal was not filed until February 23, 1981, it is clearly untimely and must be dismissed.

Accordingly, IT IS ORDERED that the union's petition for review in this case be, and it hereby is, dismissed. /2/ For the Authority. Issued, Washington, D.C., December 3, 1982 James J. Shepard, Executive Director

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

/1/ The union did not request the allegation in writing from the activity, but, as indicated above, merely submitted proposals for negotiation. While the union did not exercise its right to initiate the formal negotiability appeal process under section 2424.3 of the Authority's Rules and Regulations by requesting in writing that the activity serve it with a responsive allegation, the union could, as it did here, properly consider the unrequested written contentions of the activity as an allegation for purpose of appeal to the Authority and file such an appeal pursuant to section 2424.3, subject, of course, to the time limit prescribed by that provision. See, e.g., International Brotherhood of Electrical Workers, AFL-CIO, Local 121 and Department of the Treasury, Bureau of Engraving and Printing, 10 FLRA No. 39 (1982); and American Federation of Government Employees, AFL-CIO, Local 1858 and Department of the Army, U.S. Army Missile Command, Redstone Arsenal, Alabama, 10 FLRA No. 85 (1982).

/2/ This dismissal is without prejudice. That is, if the matter proposed to be negotiated continues in dispute between the parties, an allegation may be requested in writing and a petition for review duly filed by the union with the Authority in accordance with section 2424.3 of theAuthority's Rules and Regulations.