National Treasury Employees Union (Union) and United States Department of the Treasury, Internal Revenue Service (Agency)

[ v63 p26 ]

63 FLRA No. 11

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

and

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
(Agency)

0-MC-23

_____

ORDER

December 9, 2008

_____

Before the Authority: Thomas M. Beck, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      The Union has filed with the Authority a request that the Authority issue a stay directing the Federal Service Impasses Panel (the Panel) to defer conducting any proceedings or taking any action in Department of the Treasury, Internal Revenue Service, Washington, D.C., Case No. 07 FSIP 10. Pursuant to an order of the Authority, the Agency filed an opposition to the Union's request.

      For the reasons that follow, we dismiss the Union's request as moot.

II.      Background

      The Agency filed a request for assistance with the Panel to consider a negotiation impasse concerning ground rules to govern negotiations over the parties' successor national agreement. Following an investigation of the request for assistance, the Panel determined that the dispute should be resolved through an informal conference with two Panel members. The Panel informed the parties that, if no settlement was reached, then the members would notify the Panel of the status of the dispute and that, after considering this information, the Panel would take whatever action it deemed appropriate, including issuing a binding decision imposing one of the parties' final offers on a package basis. When the parties were unable to resolve the dispute at the meeting with the Panel members, the Panel requested that the parties submit their final offers. The Agency submitted its final offer. However, the Union declined to submit a final offer and, instead, contended that the Panel lacked jurisdiction.

      According to the Union, before meeting with the Panel members, the parties were in "term contract negotiations." Union's Request for a Stay at 1. During bargaining over ground rules, the Union filed two grievances claiming that the Agency had committed unfair labor practices under the Statute and violated the parties' collective bargaining agreement by failing to bargain in good faith over the ground rules. In an arbitration award resolving the grievances, Arbitrator M. David Vaughn determined that the Agency had failed to bargain in good faith and that, consequently, "[t]he [p]arties are not, and have not been, at impasse." Award at 66, Union Attachment 2. [n*]  On the basis of this award, the Union moved for the Panel to relinquish jurisdiction over the dispute and to order the parties to return to the bargaining table. The Union then filed its request that the Authority stay the Panel proceedings.

III.      Positions of the Parties

A.      Union's Request for a Stay

      The Union argues that the Authority is empowered to grant the request for a stay on the basis of Arbitrator Vaughn's determination that, as a matter of law, there is no impasse. In support of its request, the Union relies on NTEU, 32 FLRA 1131 (1988), in which the Authority granted stays of Panel orders. The Union notes that the Authority ruled in NTEU that the Statute confers on the Authority the power to stay Panel proceedings and asserts that