35:0007(2)NG - - NTEU and Treasury, IRS - - 1990 FLRAdec NG - - v35 p7

[ v35 p7 ]
The decision of the Authority follows:

35 FLRA No. 2











March 8, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of a ground rules provision entered into by the Union and the Internal Revenue Service (IRS) and disapproved by the Department of Treasury pursuant to section 7114(c) of the Statute.(*)

We find that the provision is nonnegotiable because it is inconsistent with section 7119(b)(2) of the Statute.

II. The Provision

1) The groundrules [sic] agreement executed by the Internal Revenue Service (IRS) and the National Treasury Employees Union (NTEU) on August 26, 1988 is hereby amended as follows:

a) Section 10 is deleted and is replaced by the following--

If an impasse remains after Federal mediation, the parties will submit the impasse to a mediator/arbitrator. If a mediator/arbitrator has not been chosen by the parties by November 14, 1988, selection will be by the following procedures:

1. each party will submit three (3) names of candidates who are vailable for the week of February 13, 1989;

2. FMCS will submit one (1) name;

3. the mediator/arbitrator selected must have Federal sector mediation/arbitration experience;

4. the parties will strike names alternately until one (1) name remains; and

5. the remaining candidate shall be the mediator/arbitrator.

The parties will request the mediator/arbitrator to schedule the mediation/arbitration process for the week of February 13, 1989.

The mediator/arbitrator shall have the authority to make recommendations for the final provisions of the agreements to be negotiated pursuant to these groundrules [sic]. These recommendations will be accepted by the parties, subject to agency head review pursuant to 5 U.S.C. 7114(c) and ratification by NTEU pursuant to its bylaws.

b) Section 22 is amended by deleting the last sentence of the section.

2. All other provisions of the August 26, 1988, groundrules [sic] agreement remain in full force and effect.

3. This agreement will become effective thirty-one (31) days from execution, or upon agency head approval, whichever comes first.

III. Positions of the Parties

A. The Union

According to the Union, the provision establishes the procedures to be used by the parties to resolve impasses which may occur during their negotiations for a new agreement. The Union states that the provision "establish[es] a voluntary third party mediation process[.]" Reply Brief at 2. The Union describes the procedures of section 7119 of the Statute, which set forth the roles of the Federal Mediation and Conciliation Service (FMCS) and the Federal Service Impasses Panel (FSIP or Panel) in resolving negotiation impasses, and states that the provision is a mechanism to be used "following assistance from the FMCS, but before seeking assistance of the FSIP." Id. at 4 (emphasis in original).

The Union states that the recommendations to be made by the mediator/arbitrator would be binding on the parties only by mutual agreement, and would have no independent legally binding effect. Id. The Union also notes that the provision is not encompassed by section 7119(b)(2) of the Statute, which requires Panel approval of parties' requests for binding arbitration. The Union claims that because the procedure is a voluntary one to be used by the parties before seeking Panel assistance, no prior Panel approval is required. Id. at 5.

Finally, the Union argues that the provision is not inconsistent with section 7114(c) of the Statute, as claimed by the Agency. According to the Union, the provision specifically provides for agency head review of the recommendations made by the mediator/arbitrator.

B. The Agency

The Agency argues that the provision is inconsistent with section 7119(b)(2) of the Statute because although the provision states that the mediator/arbitrator will issue recommendations, "it is evident from the remainder of the proposal that these 'recommendations' are binding on the parties." Statement of Position at 3. The Agency claims that when parties agree to binding arbitration to settle a negotiation impasse, the Panel must approve the procedure under section 7119(b)(2). The Agency argues that because the provision sets forth a procedure for invoking binding arbitration which does not provide for prior Panel approval, the provision is inconsistent with section 7119(b)(2) of the Statute.

The Agency further argues that the provision conflicts with section 7114(c) of the Statute because, in the Agency's view, the provision would eliminate agency head review which is mandated by that section. The Agency also states that it has not delegated the task of agency head review to the IRS, a subordinate bureau of the Agency, and, therefore, the IRS cannot waive the Agency's statutory right to conduct a review. The Agency asserts that "the provision at issue is not saved by the caveat subjecting the binding recommendations of the mediator/arbitrator 'to agency head review'[,]" because once the parties invoke arbitration under section 7119(b)(2) of the Statute, the Agency has waived any right to perform agency head review. Id. at 7-8.

IV. Analysis and Conclusions

As explained more fully below, we find that the provision is inconsistent with section 7119(b)(2) of the Statute and is outside the duty to bargain. Therefore, we will dismiss the petition for review. Initially, however, we express concern about the use of specific dates in the provision, and in bargaining proposals generally, and discuss what action we will take in future negotiability appeals relating to proposals or provisions that contain specific dates.

A. Proposals/Provisions Containing Expired Time Limits

The provision in this case provides that specific actions were to take place by specific dates. For example, the provision requires that a mediator/arbitrator be selected by November 14, 1988, or, alternatively, by February 13, 1989, and that the mediation/arbitration process will be scheduled for the week of February 13, 1989. However, the provision was not disapproved by the Agency until December 9, 1988, after the first deadline had passed for the selection of a mediator/arbitrator. Further, we note that the petition for review was filed by the Union on December 23, 1988; the Agency filed its statement of position on February 8, 1989; and the Union filed its response thereto on February 23, 1989. Consequently, by the time the Union filed its response to the Agency's statement of position, all the dates contained in the provision had passed.

Were the Authority to now find the provision to be within the duty to bargain and order the Agency to rescind its disapproval, a question would arise concerning the parties' ability to comply with the provision as written. The Union and the IRS could, of course, reach an agreement that would allow them to implement the provision. However, a failure to do so could lead to further litigation.

Alternatively, the Authority could find that the provision had become moot because of the passage of the specified dates and because the parties have not indicated how they intend to comply with the provision. We have chosen not to do so here, recognizing that the parties had a good faith desire to reach agreement. In future cases, however, where proposals or provisions contain specific dates that may pass before final Authority action, the parties should address how compliance with the proposal or provision could be effected. If specific dates have passed and the parties have not addressed this matter (and it is not otherwise apparent how compliance could be effected), the proposals or provisions will be found moot and petitions for review will be dismissed.

We recognize, of course, that parties should not be penalized because of administrative delays. As an alternative to incorporating specific dates in proposals or provisions, the parties are encouraged to consider using specific time frames or periods when fashioning proposals. In doing so, the parties could avoid a finding by the Authority that the matter proposed to be bargained has become moot by the passage of time.

B. Negotiability of the Provision

The Agency argues that the provision is nonnegotiable because it is inconsistent with section 7119(b)(2) of the Statute. For the following reasons, we agree with the Agency.

We reject the Union's assertion that the impasse resolution procedure outlined in the provision is consistent with section 7119(b). As explained by the Union in its reply brief, the provision was designed to apply after the parties had received assistance from FMCS but before seeking the assistance of the Panel. In our view, however, the Union's stated intent is inconsistent with the wording of the provision. Where a union's statement of intent is inconsistent with the wording of a proposal or provision, we will base our decision on the interpretation of the proposal or provision which is consistent with the plain wording. American Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command-Redstone Arsenal Commissary, 27 FLRA 69, 78 (1987).

For example, nothing in the provisio