NTEU and NTEU Buffalo District Joint Council and IRS Buffalo District; NTEU and NTEU Chapter 49 and IRS Manhattan District; NTEU and NTEU Chapter 54 and IRS Providence District; NTEU and NTEU Chapter 61 and IRS Albany District




[ v03 p337 ]
03:0337(54)NG
The decision of the Authority follows:


 3 FLRA No. 54
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU BUFFALO DISTRICT
 JOINT COUNCIL
 (Union)
 
 and
 
 INTERNAL REVENUE SERVICE
 BUFFALO DISTRICT
 (Activity)
                                            Case No. 0-NG-133
 
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU CHAPTER 49
 (Union)
 
 and
 
 INTERNAL REVENUE SERVICE
 MANHATTAN DISTRICT
 (Activity)
                                            Case No. 0-NG-134
 
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU CHAPTER 54
 (Union)
 
 and
 
 INTERNAL REVENUE SERVICE
 PROVIDENCE DISTRICT
 (Activity)
                                            Case No. 0-NG-135
 
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU CHAPTER 61
 (Union)
 
 and
 
 INTERNAL REVENUE SERVICE
 ALBANY DISTRICT
 (Activity)
                                            Case No. 0-NG-136
 
              CONSOLIDATED DECISION ON NEGOTIABILITY APPEALS
 
   THESE FOUR CASES COME BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY
(THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).  INASMUCH AS
ALL FOUR CASES INVOLVE THE SAME AGENCY (IRS) AND UNION (NTEU), AND RAISE
THE IDENTICAL ISSUES, THE AGENCY'S UNOPPOSED REQUEST THAT THE CASES BE
CONSOLIDATED FOR CONSIDERATION AND DECISION IS GRANTED.

   THE RECORD BEFORE THE AUTHORITY DISCLOSES THAT, DURING THE TERM OF A
NEGOTIATED AGREEMENT, THE AGENCY ISSUED CHANGES IN ITS HANDBOOK OF
EMPLOYEE RESPONSIBILITIES AND CONDUCT (IRM 0735.1-7) APPLICABLE TO ALL
IRS EMPLOYEES NATIONWIDE.  THE UNION THEREAFTER SUBMITTED THE FOLLOWING
PROPOSALS TO EACH ACTIVITY INVOLVED HEREIN:

   (1) EACH EMPLOYEE SHALL BE GIVEN FORTY (40) HOURS OF ADMINISTRATIVE
TIME TO BECOME FAMILIAR

   WITH THE CONTENTS OF IRM 0735.1-7 AS REQUIRED BY THAT REGULATION.

   (2) MANAGEMENT SHALL HOLD TRAINING SESSIONS FOR ALL IRS EMPLOYEES
COVERED UNDER IRM

   0735.1-7 MONITORED BY REPRESENTATIVES OF NTEU TO CLARIFY THE CONTENTS
OF IRM 0735.1-7 AS

   SUGGESTED BY ACTING COMMISSIONER WILLIAMS.

   WITH REGARD TO THE FIRST PROPOSAL, MANAGEMENT RESPONDED THAT THE
ESTABLISHED POLICY WAS TO PERMIT EMPLOYEES A REASONABLE AMOUNT OF TIME
TO FAMILIARIZE THEMSELVES WITH CHANGES IN THE IRM AND THAT, AS NO CHANGE
IN SUCH POLICY HAD BEEN MADE, THERE WAS NO DUTY TO BARGAIN.  AS TO THE
SECOND PROPOSAL, MANAGEMENT'S POSITION WAS THAT THE TRAINING SESSIONS
REQUESTED BY THE UNION WERE ALREADY NEGOTIATED INTO THE MULTI-DISTRICT
AGREEMENT BETWEEN THE PARTIES.  THEREAFTER, THE UNION FILED TIMELY
PETITIONS FOR REVIEW OF THE AGENCY HEAD'S FINAL DETERMINATION OF
NONNEGOTIABILITY WITH THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL).
THE COUNCIL DISMISSED THE PETITIONS FOR REVIEW AS IN EFFECT MOOT,
WITHOUT PASSING UPON THE MERITS OF THE APPEALS AND WITHOUT PREJUDICE TO
THE UNION'S SUBMISSION OF THE DISPUTES TO THE AUTHORITY IN CONFORMITY
WITH THE PROVISIONS OF THE NEW STATUTE AND WITH THE AUTHORITY'S
REGULATIONS ISSUED THEREUNDER.

   BY LETTER DATED FEBRUARY 9, 1979, AFTER THE STATUTE HAD BECOME
EFFECTIVE, THE UNION REQUESTED THE AGENCY HEAD TO RECONSIDER HIS
ORIGINAL DETERMINATION WITH REGARD TO THE UNION'S PROPOSALS IN LIGHT OF
THE PROVISIONS CONTAINED IN THE NEW STATUTE.

   ON JULY 18, 1979, HAVING RECEIVED NO RESPONSE FROM THE AGENCY, THE
UNION FILED THE INSTANT PETITIONS FOR REVIEW WITH THE AUTHORITY.  THE
UNION'S APPEAL ASSERTED AS TO THE FIRST PROPOSAL, IN ESSENCE, THAT
MANAGEMENT DID HAVE AN OBLIGATION TO BARGAIN OVER THE GRANTING OF
ADMINISTRATIVE TIME FOR EMPLOYEES TO BECOME FAMILIAR WITH THE
SIGNIFICANT CHANGES IN THE HANDBOOK OF EMPLOYEE RESPONSIBILITIES AND
CONDUCT WHICH THE EMPLOYEES WERE REQUIRED TO LEARN AND FOLLOW, AND THAT
THERE WAS NO PAST PRACTICE WITH REGARD TO THE NEWLY ISSUED IRM 0735.1-7.
 AS TO THE SECOND PROPOSAL, THE UNION ESSENTIALLY DISPUTED THE AGENCY'S
ASSERTION THAT THE PARTIES' MULTI-DISTRICT AGREEMENT COVERED TRAINING
SESSIONS FOR IRS EMPLOYEES SUBJECT TO IRM 0735.1-7.  IN ITS STATEMENT OF
POSITION FILED WITH THE AUTHORITY, THE AGENCY'S ONLY ARGUMENT WAS THAT
THE UNION'S PETITIONS WERE UNTIMELY FILED UNDER SECTION 7117(C) OF THE
STATUTE /1/ AND SEC. 2424.3 OF THE AUTHORITY'S RULES AND REGULATIONS.
/2/ THE UNION DID NOT FILE A RESPONSE THERETO.

   CONTRARY TO THE AGENCY'S ASSERTION, THE UNION'S PETITIONS FOR REVIEW
HEREIN WERE TIMELY FILED.  THUS, SECTION 7117(C) OF THE STATUTE (SUPRA
NOTE 1) PROVIDES THAT WHERE AN AGENCY ALLEGES THAT THE DUTY TO BARGAIN
UNDER THE STATUTE DOES NOT EXTEND TO ANY MATTER, THE EXCLUSIVE
REPRESENTATIVE MUST FILE A PETITION FOR REVIEW WITH THE AUTHORITY WITHIN
15 DAYS OF SUCH AGENCY ALLEGATION.  HOWEVER, AS PREVIOUSLY SET FORTH
(SUPRA NOTE 2), THE AUTHORITY'S IMPLEMENTING REGULATIONS STATE THAT
WHERE THE EXCLUSIVE REPRESENTATIVE HAS MADE A WRITTEN REQUEST FOR SUCH
ALLEGATION AND THE AGENCY HAS FAILED TO PROVIDE THE WRITTEN ALLEGATION
AS REQUESTED WITHIN A SPECIFIED PERIOD OF TIME, THE EXCLUSIVE
REPRESENTATIVE MAY THEREAFTER REQUEST THE AUTHORITY TO REVIEW THE
NEGOTIABILITY ISSUE(S) WITHOUT A PRIOR WRITTEN ALLEGATION.  IN THE
CIRCUMSTANCES OF THE INSTANT CASE, THE AGENCY NEVER PROVIDED THE WRITTEN
ALLEGATION UNDER THE STATUTE AS SPECIFICALLY REQUESTED BY THE UNION IN
WRITING, AND THEREFORE THE 15 DAY TIME LIMIT (MEASURED FROM THE DATE OF
AN AGENCY'S ALLEGATION) SPECIFIED IN SECTION 7117(C)(2) OF THE STATUTE
FOR FILING A PETITION FOR REVIEW NEVER BEGAN TO RUN.  ACCORDINGLY, THE
UNION'S PETITIONS FOR REVIEW WERE TIMELY FILED PURSUANT TO SECTION
7117(C) OF THE STATUTE AND SEC. 2424.3 OF THE AUTHORITY'S REGULATIONS.

   TURNING TO THE PROPOSALS AT ISSUE, BASED ON THE RECORD HEREIN, IT IS
CLEAR THAT THE ESSENCE OF THE CONTENTIONS AND ARGUMENTS OF THE PARTIES
WITH RESPECT TO THE FIRST PROPOSAL IS WHETHER THERE WAS A PAST PRACTICE
OF PROVIDING A SUFFICIENT AMOUNT OF ADMINISTRATIVE TIME FOR EMPLOYEES TO
FAMILIARIZE THEMSELVES WITH CHANGES IN IRM 0735.1-7;  IF SO, WHETHER THE
PAST PRACTICE HAD BEEN CHANGED;  AND WHETHER MANAGEMENT HAD ANY
OBLIGATION TO BARGAIN DURING THE TERM OF THE PARTIES' AGREEMENT
CONCERNING THE UNION'S FIRST PROPOSAL.  IT DOES NOT, HOWEVER, AT THIS
POINT IN THE PROCEEDINGS FOCUS ON ISSUES RIPE FOR RESOLUTION UNDER THE
PROCEDURES SET FORTH IN SECTION 7117 OF THE STATUTE AND PARTICULAR UNION
PROPOSALS ARE THEMSELVES NONNEGOTIABLE, I.E., INCONSISTENT WITH LAW,
RULE OR REGULATION.  RATHER, THE SUBSTANCE OF THE DISPUTE CONCERNS
UNFAIR LABOR PRACTICE ISSUES WHICH WOULD BE APPROPRIATE FOR RESOLUTION
AT THIS TIME UNDER THE PROCEDURES SET FORTH IN SECTION 7118 OF THE
STATUTE.  SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1931
AND DEPARTMENT OF THE NAVY, NAVAL WEAPONS STATION, CONCORD, CALIFORNIA,
CASE NO. O-NG-55, 2 FLRA NO. 19 (DEC. 5, 1979), AND NATIONAL FEDERATION
OF FEDERAL EMPLOYEES, LOCAL 1141 AND DEPARTMENT OF THE INTERIOR, BUREAU
OF MINES, ALBANY METALLURGY RESEARCH CENTER, ALBANY, OREGON, CASE NO.
O-NG-80, 2 FLRA NO. 28 (DEC. 13, 1979).

   WITH RESPECT TO THE SECOND PROPOSAL, AS PREVIOUSLY STATED, THE
PARTIES ARE ESSENTIALLY IN DISPUTE CONCERNING THE THRESHOLD QUESTION AS
TO WHETHER THEIR CURRENT MULTI-DISTRICT AGREEMENT COVERS THE MATTER OF
TRAINING SESSIONS FOR IRS EMPLOYEES SUBJECT TO IRM 0735.1-7.  TO THE
EXTENT THAT SUCH DISPUTE CONCERNS THE MEANING OF TERMS CONTAINED IN THE
PARTIES' AGREEMENT, THE PROPER FORUM IN WHICH TO RESOLVE SUCH QUESTIONS
IS NOT THE NEGOTIABILITY APPEAL BUT, INSTEAD, WOULD BE PURSUANT TO
WHATEVER PROCEDURES THE PARTIES THEMSELVES HAVE ADOPTED FOR SUCH
PURPOSE
THROUGH SUCH AGREEMENT.  SEE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1931 AND DEPARTMENT OF THE NAVY, NAVAL WEAPONS STATION,
CONCORD, CALIFORNIA, CASE NO. O-NG-55, 2 FLRA NO. 19 (DECEMBER 5, 1979).
 SEE ALSO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1661 AND DEPARTMENT OF JUSTICE, BUREAU OF PRISONS, FEDERAL CORRECTIONAL
INSTITUTION, DANBURY, CONNECTICUT, CASE NO. O-NG-43, 2 FLRA NO. 56 (JAN.
9, 1980), AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2272 AND DEPARTMENT OF JUSTICE, U.S. MARSHALS SERVICE, DISTRICT OF
COLUMBIA, CASE NO. O-NG-101, 2 FLRA NO. 113 (MAR. 14, 1980).

   BASED ON THE FOREGOING, THE UNION'S APPEALS DO NOT PRESENT ISSUES
THAT THE AUTHORITY CAN APPROPRIATELY RESOLVE AT THIS TIME UNDER SECTION
7117 OF THE STATUTE AND PART 2424 OF ITS RULES AND REGULATIONS.
ACCORDINGLY, THE APPEALS ARE DISMISSED WITHOUT PREJUDICE TO THE UNION'S
RIGHT TO RESUBMIT TO THE AUTHORITY ANY NEGOTIABILITY DISPUTE WHICH
REMAINS CONCERNING THE UNION'S PROPOSALS, AFTER RESORTING TO THE
PROCEDURES DISCUSSED ABOVE.

   ISSUED, WASHINGTON, D.C., MAY 30, 1980

                      RONALD W. HAUGHTON, CHAIRMAN

                      HENRY B. FRAZIER III, MEMBER

                       LEON B. APPLEWHAITE, MEMBER

                    FEDERAL LABOR RELATIONS AUTHORITY

   /1/ SECTION 7117(C) OF THE STATUTE (92 STAT. 1206) PROVIDES, IN
PERTINENT PART, AS FOLLOWS:

   (C) (1) EXCEPT IN ANY CASE TO WHICH SUBSECTION (B) OF THIS SECTION
APPLIES, 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, THE EXCLUSIVE
REPRESENTATIVE MAY APPEAL

   THE ALLEGATION TO THE AUTHORITY IN ACCORDANCE WITH THE PROVISIONS OF
THIS SUBSECTION.

   (2) THE EXCLUSIVE REPRESENTATIVE MAY, ON OR BEFORE THE 15TH DAY AFTER
THE DATE ON WHICH THE

   AGENCY FIRST MAKES THE ALLEGATION REFERRED TO IN PARAGRAPH (1) OF
THIS SUBSECTIO