National Treasury Employees Union and NTEU Chapter 12 (Union) and Department of the Treasury, Internal Revenue Service, Birmingham District, Alabama (Activity) 

 



[ v02 p466 ]
02:0466(64)NG
The decision of the Authority follows:


 2 FLRA No. 64
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU CHAPTER 12
 (Union)
 
 and
 
 DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE,
 BIRMINGHAM DISTRICT, ALABAMA
 (Activity)
 
                                            Case No. 0-NG-158
 
                     DECISION ON NEGOTIABILITY APPEAL
 
    IN JUNE OF 1979, IRS, BIRMINGHAM DISTRICT (THE ACTIVITY) ISSUED A
 POLICY REQUIRING REVENUE AGENTS TO ASSIST TAX AUDITORS IN AUDITS UNDER
 CERTAIN CIRCUMSTANCES.  THEREAFTER, NTEU, CHAPTER 12 (THE UNION) SOUGHT
 TO RESCIND THE AGENCY MEMORANDUM SETTING FORTH THE ALLEGED NEW POLICY
 AND GENERALLY REQUESTED "THAT THE CHANGE IN PRACTICE AND POLICY BE
 NEGOTIATED AS PROVIDED FOR IN THE CONTRACT." THE AGENCY RESPONSE TO THAT
 REQUEST INCLUDED THE ALLEGATION THAT "THE WORK ASSIGNMENT PRACTICE . . .
 IS NOT NEGOTIABLE" UNDER SECTION 7106 OF THE STATUTE.
 
    ON SEPTEMBER 5, 1979, THE UNION FILED A PETITION FOR REVIEW WITH THE
 AUTHORITY.  IN ITS PETITION, THE UNION CONTESTS THE AGENCY ALLEGATION,
 WHICH IT DESCRIBED AS STATING THAT "ANY POTENTIAL PROPOSALS BY THE UNION
 REGARDING THE PROCEDURES FOR DETERMINING WHICH REVENUE AGENTS WOULD BE
 ASSIGNED TO CONDUCT OFFICE AUDIT INTERVIEWS WOULD BE NONNEGOTIABLE." IN
 THIS REGARD, NEITHER THE UNION'S LETTER TO THE AGENCY REQUESTING AN
 ALLEGATION NOR THE PETITION FOR REVIEW CONTAINS A MORE EXPLICIT PROPOSAL
 INDICATING THE PRECISE MATTER SOUGHT TO BE NEGOTIATED.
 
    IN ITS SUBMISSION TO THE AUTHORITY, THE AGENCY ASSERTS THAT THE
 PETITION DOES NOT PRESENT A PROPER NEGOTIABILITY ISSUE AND, THEREFORE,
 SHOULD BE DISMISSED.  /1/
 
    IN SUPPORT OF THIS ASSERTION, THE AGENCY ARGUES THAT NO BARGAINING
 PROPOSAL IS PENDING BETWEEN THE PARTIES.  THE AGENCY CONCLUDES, IN THIS
 REGARD, THAT THE UNION IS ESSENTIALLY ATTEMPTING TO RESOLVE AN UNFAIR
 LABOR PRACTICE CHARGE THROUGH THE USE OF NEGOTIABILITY PROCEDURES.  /2/
 FURTHER, THE AGENCY ALLEGES THAT ASSIGNMENT OF WORK IS NONNEGOTIABLE,
 AND, ALTHOUGH PROCEDURES PERTAINING TO ASSIGNMENT MIGHT BE NEGOTIABLE,
 THE UNION HAS NEVER REQUESTED TO NEGOTIATE THE IMPACT AND IMPLEMENTATION
 OF THE POLICY.
 
    RESPONDING TO THE AGENCY'S SUBMISSION, THE UNION ASSERTS THAT THE
 NEGOTIABILITY PROCEDURES SET FORTH IN THE STATUTE AND THE AUTHORITY'S
 RULES ARE APPROPRIATE FOR THE RESOLUTION OF THE MATTER AT ISSUE.  AS TO
 THE MERITS OF THE DISPUTE, THE UNION ARGUES THAT IT "HAS NOT QUESTIONED
 THE RIGHT OF THE AGENCY TO ASSIGN REVENUE AGENTS THE WORK IN QUESTION.
 WHAT NTEU MAINTAINS IS THAT THE METHODS FOR DETERMINING WHICH REVENUE
 AGENT IS ASSIGNED ARE NEGOTIABLE." IT FURTHER CONTENDS THAT IT "VERY
 CLEARLY REQUESTED TO NEGOTIATE THE MATTER IN QUESTION." /3/
 
    IN ASSOCIATION OF CIVILIAN TECHNICIANS, ALABAMA ACT AND STATE OF
 ALABAMA NATIONAL GUARD, CASE NO. O-NG-27, 2 FLRA NO. 39(DECEMBER 28,
 1979), REPORT NO.  , THE AUTHORITY DECIDED, WITH RESPECT TO A QUESTION
 SUBSTANTIALLY IDENTICAL TO THAT PRESENTED HERE, THAT A PETITION WHICH
 NEVER PRESENTED A PROPOSAL SUFFICIENTLY SPECIFIC AND DELIMITED IN FORM
 AND CONTENT AS TO PERMIT THE AUTHORITY TO RENDER A NEGOTIABILITY
 DECISION DID NOT MEET THE CONDITIONS FOR REVIEW.  FOR THE REASONS FULLY
 SET FORTH IN THAT DECISION, THE AUTHORITY FINDS THAT THE INSTANT
 PETITION DOES NOT MEET THE CONDITIONS FOR REVIEW PRESCRIBED IN SECTION
 7117 OF THE STATUTE AND PART 2424.1 OF THE AUTHORITY'S RULES OF
 PROCEDURE.
 
    ADDITIONALLY, IT IS CLEAR FROM THE RECORD IN THIS CASE THAT THE
 PARTIES' CONTENTIONS AND ARGUMENTS FOCUS PRINCIPALLY ON WHETHER, AND ON
 WHAT, THE UNION HAS REQUESTED NEGOTIATION IN THE PARTICULAR
 CIRCUMSTANCES PRESENTED, RATHER THAN ON ISSUES APPROPRIATE FOR
 RESOLUTION UNDER THE NEGOTIABILITY PROCEDURES SET FORTH IN SECTION 7117
 OF THE STATUTE AND PART 2424 OF THE AUTHORITY'S RULES AND REGULATIONS
 CONCERNING WHETHER PARTICULAR UNION PROPOSALS RELATED TO THE ASSIGNMENT
 OF AUDITS TO REVENUE AGENTS ARE THEMSELVES NONNEGOTIABLE, I.E.,
 INCONSISTENT WITH LAW, RULE OR REGULATION.  HENCE, THE ESSENCE OF THE
 PARTIES' CONTENTIONS AND ARGUMENTS CONCERNS UNFAIR LABOR PRACTICE ISSUES
 APPROPRIATE FOR RESOLUTION UNDER THE PROCEDURES SET FORTH IN SECTION
 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT.
 1207-8).
 
    THAT IS, SINCE THE INSTANT CASE AROSE OUT OF AN ALLEGED UNILATERAL
 CHANGE AND ESSENTIALLY INVOLVED A CLAIM OF A REFUSAL TO BARGAIN ON
 PROCEDURES RELATED TO SUCH CHANGE AND A DEFENSE THAT BARGAINING HAD NOT
 BEEN REQUESTED ON IMPACT AND IMPLEMENTATION, THE PROPER FORUM IN WHICH
 TO RAISE THESE ISSUES IS NOT A NEGOTIABILITY APPEAL, BUT WAS AN UNFAIR
 LABOR PRACTICE PROCEEDING PURSUANT TO SECTION 7118 OF THE STATUTE.  IN
 THIS REGARD, AS PREVIOUSLY NOTED (NOTE 2, SUPRA), THE UNION FILED AN
 UNFAIR LABOR PRACTICE CHARGE CONCERNING THESE ISSUES.  ON DECEMBER 14,
 1979, THE REGIONAL DIRECTOR FOR THE ATLANTA REGION REFUSED TO ISSUE A
 COMPLAINT ON THE UNFAIR LABOR PRACTICE CHARGE BASED UPON HIS FINDING
 THAT THE UNION HAD NOT REQUESTED NEGOTIATION ON THE IMPACT AND
 IMPLEMENTATION OF THE AGENCY POLICY.
 
    IN CONCLUSION, THE UNION'S APPEAL DOES NOT MEET THE CONDITIONS FOR
 REVIEW UNDER SECTION 7117 OF THE STATUTE AND PART 2424 OF THE
 AUTHORITY'S RULES AND REGULATIONS.  ACCORDINGLY, THE APPEAL IS
 DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JANUARY 18, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ IN THIS REGARD, THE AGENCY CITES THE NEGOTIABILITY PROCEDURES SET
 FORTH IN SECTION 7117 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (92 STAT. 1205) AND PART 2424.1 OF THE AUTHORITY'S RULES AND
 REGULATIONS (44 FED. REG. 44765(1979)) SETTING FORTH CONDITIONS
 GOVERNING REVIEW OF NEGOTIABILITY ISSUES, WHICH STATES IN PERTINENT PART
 AS FOLLOWS:
 
    THE AUTHORITY WILL CONSIDER A NEGOTIABILITY ISSUE UNDER THE
 CONDITIONS PRESCRIBED BY 5
 
    U.S.C. 7117(B) AND (C), NAMELY:  IF AN AGENCY INVOLVED IN COLLECTIVE
 BARGAINING WITH AN
 
    EXCLUSIVE REPRESENTATIVE ALLEGES THAT THE DUTY TO BARGAIN IN GOOD
 FAITH DOES NOT EXTEND TO ANY
 
    MATTER PROPOSED TO BE BARGAINED BECAUSE, AS PROPOSED, THE MATTER IS
 INCONSISTENT WITH LAW,
 
    RULE OR REGULATION, THE EXCLUSIVE REPRESENTATIVE MAY APPEAL THE
 ALLEGATION TO THE AUTHORITY
 
    . . . .
 
    /2/ CONCURRENTLY, THE UNION FILED AN UNFAIR LABOR PRACTICE CHARGE
 WITH THE ATLANTA REGIONAL OFFICE (4-CA-217) ALLEGING A SEC. 7116(A)(5)
 VIOLATION OF THE AGENCY'S DUTY TO BARGAIN CONCERNING THE SAME AGENCY
 ACTION.
 
    /3/ IN THIS REGARD, THE PARTIES APPARENTLY ARE IN AGREEMENT THAT THE
 AGENCY HAS THE RIGHT UNDER THE STATUTE TO ASSIGN REVENUE AGENTS THE WORK
 IN QUESTION, AND THAT IMPACT AND IMPLEMENTATION OF THE POLICY ARE
 GENERALLY PROPER SUBJECTS FOR NEGOTIATION.