09:0178(27)CA NTEU VS TREASURY, IRS -- 1982 FLRAdec CA



[ v09 p178 ]
09:0178(27)CA
The decision of the Authority follows:


9 FLRA NO. 27

INTERNAL REVENUE SERVICE

                   Respondent

         and

NATIONAL TREASURY EMPLOYEES UNION

                   Charging Party

Case No. 3-CA-358

DECISION AND ORDER

This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations.

Upon consideration of the entire record in the subject case, including the parties' stipulation of facts entered into on January 21, 1981, accompanying exhibits and briefs submitted by the Respondent, the General Counsel and the Charging Party, the Authority finds:

At all times material herein, the Charging Party has been the exclusive representative for units of employees of the Respondent. On October 4, 1978, the Charging Party, National Treasury Employees Union (Union), submitted bargaining proposals in connection with the proposed elimination by the Internal Revenue Service (Respondent) of the practice of holding district office conferences, and establishing new time periods within which Appeals Officers must contact taxpayers and schedule conferences. At that time, the Union submitted a list of proposals to the Respondent concerning the establishment of a "one level of appeal" procedure. Respondent submitted a counterproposal to the Union on November 7, 1978; two days later the parties met and discussed their proposals, at which time the Respondent orally asserted that the Union's proposals were nonnegotiable.

On November 15, 1978, Respondent informed the Union in writing that the Union's proposals were nonnegotiable, and that the Respondent would (and subsequently did) implement the proposed changes effective November 21, 1978. On December 29, 1978, the Union appealed the Respondent's assertion of nonnegotiability to the Federal Labor Relations Council. Noting that the appeal was filed shortly before the effective date of the new Statute, and that the parties had not [ v9 p178 ] addressed the negotiability of the disputed proposals thereunder, the Council dismissed the appeal as in effect moot, without passing upon the merits of the appeal and without prejudice to the Union's submission of the dispute to the Federal Labor Relations Authority. On February 9, 1979, the Union resubmitted its proposal of October 4, 1978 to the Respondent for a negotiability determination, stating that if a reply were not received within 15 days, the Union would consider the Respondent's position to be unchanged. Respondent chose not to respond to the Union's request.

The Union, by letter dated April 19, 1979, submitted an altered proposal concerning the Appeals Officers' workload matter for the Respondent's consideration. By letter dated May 10, 1979, the Respondent asserted to the Union that it had no obligation to bargain over the altered proposal. By letter of May 21, 1979, the Union responded that the Respondent had a duty to bargain over the altered proposal. By letter of June 7, 1979, the Respondent reaffirmed its refusal to bargain over such proposal.

On July 19, 1979, the Union filed an unfair labor practice charge based upon the Respondent's decision not to consider the Union's altered proposal submitted on April 17, 1979, thereby allegedly failing to negotiate in good faith with the Union. The General Counsel subsequently issued a complaint alleging a violation of section 7116(a)(1) and (5) of the Statute.

The Respondent contends that the Union's unfair labor practice charge was untimely because it was not filed within the six month period specified in section 7118(a)(4)(A) of the Statute, which period began when the Respondent implemented the changes in question on November 21, 1978. However, the charge herein does not allege an unfair labor practice concerning the Respondent's actual changes. Rather, the charge and complaint allege that the Respondent unlawfully refused to negotiate in May 1979 concerning the Union's April 1979 altered proposal, and the charge was filed within 6 months of such refusal. Accordingly, the charge was timely filed.

The Authority also rejects the Respondent's additional contention that it had no obligation to consider the Union's April 19, 1979 altered proposal because, "from the data of the FLRC dismissal to the submission of the 'new proposals' on April 19, 1979, (the Union) neither pursued its appeal nor indicated its intent to concede the negotiability issue [ v9 p179 ] and submit a new proposal . . . (and thus) has abridged its rights in this matter by failing to pursue a timely and effective course of action." In this regard, the Authority finds that the Union neither waited too long nor otherwise waived its rights to negotiate aspects of management's changes in policy. Thus, as set forth above, the stipulated record indicates that after the Union's negotiability appeal to the Council was dismissed without prejudice, the Union resubmitted the original proposals to the Respondent for consideration under the Statute. When the Respondent failed to respond within 10 days, the Union could have submitted a negotiability appeal to the Authority. 1 In the Authority's view, the Union was not bound to do so; instead, it clearly had a right to submit altered proposals to the Respondent pursuant to section 7106(b) of the Statute 2 and it did so on [ v9 p180 ] April 19, 1979. See Department of the Air Force, U.S. Air Force Academy, 6 FLRA No. 100 (1981) and Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No. 2 (1981).

Accordingly, the Respondent's refusal to bargain concerning the Union's altered proposal solely on the ground that the Union had in effect waived its bargaining rights, constitutes a violation of section 7116(a)(1) and (5) of the Statute, as alleged in the complaint. 3

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Authority hereby orders that the Internal Revenue Service, Washington, D.C. shall:

1. Cease and desist from:

(a) Refusing to negotiate in good faith with the National Treasury Employees Union, the exclusive representative of its employees, concerning the bargaining proposal submitted on April 19, 1979 with respect to procedures for controlling the workload of Internal Revenue Service Appeals Officer employees.

(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: [ v9 p181 ]

(a) Upon request of the National Treasury Employees Union, the exclusive representative of its employees, negotiate in good faith concerning the bargaining proposal submitted on April 19, 1979 with respect to procedures for controlling the workload of Internal Revenue Service Appeals Officer employees.

(b) Post at all of the Internal Revenue Service's District Offices, Regional Offices, and National Offices, and Internal Revenue Service Centers, Data Center, Detroit, Michigan and the National Computer Center, Martinsburg, West Virginia, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Director of each installation and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous place, including all bulletin boards and other places where notices to employees are customarily posted. The Directors shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, 1111 18th Street, N.W., Washington, D.C. 20036, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, D.C., June 23, 1982

Ronald W. Haughton, Chairman

Henry B. Frazier, Member

Leon B. Applewhaite MEmber

FEDERAL LABOR RELATIONS AUTHORITY [ v9 p182 ]

                       NOTICE TO ALL EMPLOYEES
                             PURSUANT TO
                     A DECISION AND ORDER OF THE
                  FEDERAL LABOR RELATIONS AUTHORITY
             AND IN ORDER TO EFFECTUATE THE POLICIES OF
                    CHAPTER 71 OF TITLE 5 OF THE
                         UNITED STATES CODE
              FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
                 WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to negotiate in good faith with the National Treasury Employees Union, the exclusive bargaining representative of our employees, concerning the bargaining proposal submitted on April 19, 1979 with respect to procedures for controlling the workload of Internal Revenue Service Appeals Officer employees.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

WE WILL negotiate in good faith with the National Treasury Employees Union, upon request, concerning the bargaining proposal submitted on April 19, 1979 with respect to procedures for controlling the workload of Internal Revenue Service Appeals Officer employees.

                           ________________________________
                                   (Agency or Activity)

Dated: ____________By:_____________________________________
                               (Signature)          (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If any employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is 1111 18th Street, NW., Washington, D.C. 20036, and whose telephone number us: (202) 653-8452. [ v9 p183 ]

INTERNAL REVENUE SERVICE

                   Respondent

         and

NATIONAL TREASURY EMPLOYEES UNION

                   Charging Party

Case No. 3-CA-358
9 FLRA No. 27

ORDER DENYING MOTION FOR RECONSIDERATION

This matter is before the Authority on a Motion For Reconsideration of the Authority's decision in Internal Revenue Service, 9 FLRA No. 27 (1982), filed by the Respondent.

On June 23, 1982, the Authority issued its Decision and Order in the above proceeding finding that the Respondent had engaged in certain unfair labor practices and ordering that it cease and desist therefrom and take certain affirmative actions. By letter dated July 20, 1982 the Respondent requested that the Authority reconsider certain aspects in the order portion of the decision as it relates to the posting of the Notice To all Employees.

Section 2429.17 of the Authority's Rules and Regulations, effective September 10, 1981, provides, in pertinent part:

2429.17 Reconsideration

After a final decision or order of the Authority has been issued, a party to the proceeding before the Authority who can establish in its moving papers extraordinary circumstances for so doing, may move for reconsideration of such final decision or order. The motion shall be filed within 10 days after service of the Authority's decision or order . . . . [ v9 p ]

The Authority's Decision and Order was dated and served upon the Respondents by mail on June 23, 1982. Therefore, under section 2429.17 and sections 2429.21 and 2429.22 which are also applicable to computation of the time limit here involved, a motion for reconsideration to be timely was due in the national office of the Authority before the close of business on July 8, 1982. Since the Respondent Agency's motion was not mailed until July 20, 1982, it is clearly untimely and must be denied.

Accordingly, IT IS ORDERED that the Respondent Agency's motion for reconsideration in this case be, and it hereby is, denied.

Issued, Washington, D.C., November 18, 1982

James J. Shepard, Executive Director

FEDERAL LABOR RELATIONS AUTHORITY [ v9 p2 ]

FOOTNOTES

Footnote 1 Section 2424.3 of the Authority's Rules and Regulations provides as follows: 2424.3 Time Limits for filing. 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: Provided, however, That review of a negotiability issue may be requested by an exclusive representative under this subpart without a prior written allegation by the agency if the agency has not served such allegation upon the exclusive representative within (10) days after the date of the receipt by any agency bargaining representative at the negotiations of a written request for such allegation.

Footnote 2 Section 7106(b)(2) and (3) provide: (b) Nothing in this section shall preclude any agency and any labor organization from negotiating (2) procedures which management officials of the agency will observe in exercising any authority under this section; (3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.

Footnote 3