Department of the Treasury, Internal Revenue Service (Activity) and National Treasury Employees Union (Union)

 7 FLRA No. 94
 
 DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE
 (Activity)
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 (Union)
 
                                            Case No. O-NG-296
 
                          ORDER DISMISSING APPEAL
 
    THIS CASE IS BEFORE THE AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101
 ET SEQ.) ON A PETITION FOR REVIEW OF A NEGOTIABILITY ISSUE FILED BY THE
 UNION.  FOR THE REASONS INDICATED BELOW, THE PETITION MUST BE DISMISSED.
 
    THE RECORD BEFORE THE AUTHORITY DISCLOSES THAT DURING THE COURSE OF
 NEGOTIATIONS RELATED TO THE ACTIVITY'S PROPOSED "PRIORITY PLACEMENT
 PROGRAM," THE ACTIVITY MAINTAINED THAT A UNION PROPOSAL CONCERNING THE
 SELECTION OF EMPLOYEES FOR SUCH PLACEMENT WAS NONNEGOTIABLE.  HOWEVER,
 THE PARTIES BARGAINING RESULTED IN AN AGREEMENT ON A NUMBER OF ISSUES
 AND THE AGREEMENT INCLUDED THE FOLLOWING CLAUSE (SECTION 8A):
 
    THE UNION MAY REOPEN THE NEGOTIATION OF THIS AGREEMENT ANYTIME DURING
 THE MONTH OF MARCH,
 
    1982 TO ADDRESS THE SELECTION PROCEDURES AND CRITERIA OF ELIGIBLE
 EMPLOYEES . . .
 
    AFTER THE AGREEMENT WAS SIGNED BY THE UNION BUT PRIOR TO ITS
 EXECUTION BY THE ACTIVITY, THE ACTIVITY PROVIDED THE UNION WITH A
 WRITTEN ALLEGATION OF NONNEGOTIABLITY AS TO THE DISPUTED PROPOSAL.  IN
 THAT INTERIM PERIOD, THE ACTIVITY ALSO PREPARED A MEMORANDUM, WHICH WAS
 SIGNED BY BOTH ACTIVITY AND UNION REPRESENTATIVES, SETTING FORTH THEIR
 POSITIONS CONCERNING THE DISPUTED PROPOSAL AND THE SECTION 8A REOPENER
 CLAUSE OF THE AGREEMENT.  THE SUBJECT MEMORANDUM STATES, IN PERTINENT
 PART:
 
    . . . (T)HE IRS FORMALLY DECLARED ONE OF YOUR PROPOSALS
 NONNEGOTIABLE.  BASED ON
 
    MANAGEMENT'S ASSERTION, WE UNDERSTAND THAT YOU INTEND TO SEEK A
 NEGOTIABILITY DETERMINATION
 
    FROM THE FEDERAL LABOR RELATIONS AUTHORITY.  IN THE EVENT THE FLRA
 FINDS YOUR PROPOSAL
 
    NEGOTIABLE YOU MAY DECIDE TO RE-SUBMIT THE PROPOSAL IF YOU CHOOSE TO
 RE-OPEN THE AGREEMENT
 
    PURSUANT TO SECTION 8A.  HOWEVER, IT IS FURTHER UNDERSTOOD THAT YOU
 WILL NOT SUBMIT THE
 
    PROPOSAL PRIOR TO THE TIME PERIOD SPECIFIED IN SECTION 8A FOR
 RE-OPENING THE AGREEMENT.
 
    SUBSEQUENT TO SIGNING THAT MEMORANDUM, THE UNION FILED THE INSTANT
 PETITION WITH THE AUTHORITY.
 
    WE HAVE DETERMINED THAT THE CIRCUMSTANCES HERE INVOLVED DO NOT GIVE
 RISE AT THIS TIME TO A NEGOTIABILITY ISSUE UPON WHICH THE AUTHORITY CAN
 RULE PURSUANT TO SECTION 7117 OF THE STATUTE.  RATHER, THE UNION'S
 NEGOTIABILITY APPEAL IS PREMATURE SINCE THE PARTIES EXPRESSLY AGREED IN
 THE MEMORANDUM THAT THE MATTER IN DISPUTE WOULD NOT AGAIN BECOME A
 SUBJECT OF NEGOTIATIONS UNTIL MARCH 1982 WHEN THE CONTRACT REOPENER
 PROVISION BECAME OPERATIVE AND RESUBMISSION OF THE PROPOSAL COULD OCCUR.
  FOR THE AUTHORITY TO RULE ON THE MERITS OF THE UNION'S PROPOSAL IN
 THESE CIRCUMSTANCES WOULD BE TANTAMOUNT TO RENDERING AN ADVISORY OPINION
 CONTRARY TO SECTION 2429.10 OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    ACCORDINGLY, IT IS HEREBY ORDERED THAT THE UNION'S PETITION BE
 DISMISSED WITHOUT PREJUDICE TO THE RESUBMISSION OF THE PROPOSAL TO THE
 ACTIVITY FOR NEGOTIATION IN ACCORDANCE WITH THE PARTIES' AGREEMENT AND
 TO THE RENEWAL OF ITS CONTENTIONS AS TO THE MERITS OF THE PROPOSAL IN A
 PETITION DULY FILED WITH THE AUTHORITY SHOULD THE ACTIVITY ALLEGE AT
 THAT TIME THAT THE PROPOSAL IS NONNEGOTIABLE.
 
    FOR THE AUTHORITY.
 
    ISSUED, WASHINGTON, D.C., JANUARY 7, 1982
 
                   JAMES J. SHEPARD, EXECUTIVE DIRECTOR