15:0268(57)NG - NTEU and IRS, Kansas City Service Center, Kansas City, MO -- 1984 FLRAdec NG
[ v15 p268 ]
15:0268(57)NG
The decision of the Authority follows:
15 FLRA No. 57 NATIONAL TREASURY EMPLOYEES UNION Union and INTERNAL REVENUE SERVICE, KANSAS CITY SERVICE CENTER, KANSAS CITY, MISSOURI Agency Case No. O-NG-884 ORDER DISMISSING NEGOTIABILITY APPEAL The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The record indicates that the Union sought to negotiate over the Agency's changes in certain incentive award criteria. The Agency refused to bargain with the Union over the proposal which is the subject of the instant appeal alleging, among other things that under the circumstances it had fulfilled its obligation to bargain. /1/ In response to the Agency's refusal to bargain over the proposal, the Union filed the instant appeal and an unfair labor practice charge alleging that the Agency committed an unfair labor practice by implementing an incentive award program without first bargaining over the Union's proposals. Pursuant to section 2424.5 of the Authority's Rules and Regulations, the Union elected to proceed with the unfair labor practice charge and to suspend further action on the negotiability appeal. Upon investigation, the Regional Director concluded that further proceedings on the Union's charge were not warranted. Specifically, the Regional Director determined that the Union did not submit the proposal which is the subject of the instant appeal until after the Agency had implemented the proposed changes. The Regional Director, therefore, concluded that the Union failed to submit the proposal within a reasonable time and, thus, the Agency did not have an obligation to bargain over the proposal. No appeal of the Regional Director's determination was taken to the General Counsel. In the absence of a duty to bargain between the parties, issues as to whether a particular proposal is inconsistent with applicable law, rule or regulation are not appropriate for resolution by the Authority. National Federation of Federal Employees, Local 1363 and Headquarters, U.S. Army Garrison, Yongsan, Korea, 8 FLRA 200 (1982), and National Federation of Federal Employees, Local 1363 and Headquarters, U.S. Army Garrison, Yongsan, Korea, 8 FLRA 134 (1982). Thus, based upon the Regional Director's determination of no obligation on the part of the Agency to bargain, which was not appealed by the Union, it is concluded that any negotiability issue which might have been raised in the instant appeal is now moot. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., July 16, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY (DECISION AND ORDER ON REMAND OF 8 FLRA No. 97) AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 Union and OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C. Agency Case No. O-NG-157 (8 FLRA 460) DECISION AND ORDER ON REMAND On May 7, 1982, the Authority issued its Decision and Order in the above-entitled proceeding in which it found that Proposal VI, which provided that an employee demoted through no fault of his/her own be selected to fill the first vacancy at his/her former grade level, was inconsistent with section 7106(a)(2)(C) of the Statute and, therefore, was not within the Agency's duty to bargain. American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA 460 (1982). Thereafter, on March 13, 1984, the U.S. Court of Appeals for the District of Columbia Circuit reversed the Authority's decision with respect to Proposal VI and remanded the decision for the entry of an order requiring bargaining. Local 32, AFGE, AFL-CIO v. Federal Labor Relations Authority, 728 F.2d 1526, 1530 (D.C. Cir. 1984). The Authority then filed with the Court a motion for leave to file a petition for rehearing out of time in order to request that, upon processing of the Court-ordered remand, the Authority be allowed to consider whether the proposal was inconsistent with a Government-wide rule or regulation, an issue raised in the case and not resolved by the Court, but found dispositive in an analogous Authority decision, Decision and Order on Remand in American Federation of Government Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 7 FLRA 91 (1983), petition for review granted, 702 F.2d 1183 (D.C. Cir. 1983), which issued after the time had passed for filing a petition for rehearing. The Authority's motion was denied on June 27, 1984. Local 32, AFGE, AFL-CIO v. FLRA, No. 82-1756 (D.C. Cir. 1984). Thus, the Authority accepts the Court's opinion as the law of the case and, consistent with that opinion, and, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning proposal VI. /2/ Issued, Washington, D.C., July 10, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY (SUPPLEMENTAL DECISION AND ORDER TO 9 FLRA No. 40) DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE JACKSONVILLE DISTRICT Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE JACKSONVILLE AND ATLANTA DISTRICTS Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case Nos. 4-CA-498, 4-CA-561 9 FLRA 333 SUPPLEMENTAL DECISION AND ORDER On June 30, 1982, the Authority issued a Decision and Order in the above-entitled proceeding in which it found that the Respondent failed and refused to comply with section 713(a) of the Federal Service Labor-Management Relations Statute (the Statute) in violation of section 7116(a)(1) and (8) of the Statute, based on its refusal to provide official time to employees Wayne Pierce, Calvin Barnlund, and Orville Guinn in connection with negotiations conducted between the parties on May 15, 1980. The Authority further found that the Respondent's denial of the reimbursement of travel and per diem expenses related to such negotiations for these employees also constituted a failure and refusal to comply with section 7131(a) in violation of section 7116(a)(1) and (8) of the Statute. Thereafter, the Respondent petitioned the United States Court of Appeals for the Eleventh Circuit for review of the Authority's decision. The Court stayed its review of the Authority's decision to await the United States Supreme Court's decision in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 104 S.Ct. 439 (1983). In that decision, the Supreme Court concluded that the obligation of an agency under section 7131(a) of the Statute to provide official time to employees representing an exclusive representative in the negotiation of a collective bargaining agreement does not encompass the payment of travel expenses and per diem allowances. Based on that decision, the Respondent filed a motion for summary reversal of the Authority's Decision insofar as it pertained to travel and per diem expenses. The motion was granted by the United States Court of Appeals for the Eleventh Circuit on February 27, 1984. Pursuant to the Order of the United States Court of Appeals for the Eleventh Circuit, the Authority dismisses the allegations of the complaint pertaining to the Respondent's failure and refusal to reimburse its employees for their travel and per diem expenses and hereby vacates its prior Order in this regard. Accordingly, the Authority shall issue the following Order and require that the accompanying Notice To All Employees be posted in this matter. ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the Authority hereby orders that the Respondent Department of Treasury, Internal Revenue Service, Jacksonville and Atlanta Districts shall: 1. Cease and desist from: (a) Failing and refusing to provide Calvin Barnlund, Wayne Pierce and Orville Guinn, or any other bargaining unit employees, while engaged in representing the National Treasury Employees Union, the employees' exclusive representative, during negotiation of a collective bargaining agreement, official time for such participation including necessary travel time during the employees' regular work hours and when the employees would otherwise be in a work or paid leave status. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute: (a) Provide Union representative Wayne Pierce official time for the performance of his collective bargaining duties on May 14 and 15, 1980, and make him whole for any annual leave he may have utilized on such dates. (b) Post at its various offices in the Atlanta and Jacksonville Districts wherein unit employees are located, 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 the Jacksonville and Atlanta Districts, respectively, or their designees, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said 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 IV, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the section 7116(a)(5) allegation of the consolidated complaint be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the consolidated complaint be, and it hereby is, dismissed insofar as it alleges a violation of section 7116(a)(1) and (8) of the Statute based on the failure and refusal to reimburse employees Wayne Pierce, Calvin Barnlund and Orville Guinn for their travel and per diem expenses. Issued, Washington, D.C., July 17, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY 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 fail or refuse to provide to Calvin Barnlund, Wayne Pierce and Orville Guinn or any other bargaining unit employees, while engaged in representing the National Treasury Employees Union, the employees' exclusive representative, during negotiation of a collective bargaining agreement, official time for such participation including necessary travel time as occurs during the employees' regular work hours and when the employees would otherwise be in a work or paid leave status. 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 Statute. WE WILL provide Union representative Wayne Pierce official time for the performance of his collective bargaining duties on May 14 and 15, 1980, and make him whole for the annual leave he may have utilized on the above dates. (Agency or Activity) By: (Signature) Dated: . . . 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 employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region IV, whose address is: 1776 Peachtree Street, NW, Suite 501, North Wing, Atlanta, GA 30309, and whose telephone number is (404) 881-2324. (ORDER DENYING MOTION FOR RECONSIDERATION OF 9 FLRA No. 36) UNITED STATES DEPARTMENT OF JUSTICE UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL BORDER PATROL COUNCIL Charging Party/Intervenor and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2455 Charging Party and INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS Petitioner Case Nos. 6-CA-48, 6-CA-49, 63-CA-565, 63-RO-6 9 FLRA No. 36 ORDER DENYING MOTION FOR RECONSIDERATION This case is before the Authority on a motion for reconsideration filed by the International Brotherhood of Police Officers (IBPO) on July 9, 1984, seeking reconsideration of the Authority's Supplemental Decision and Order and Direction of Second Election of May 31, 1984. For the reason set forth below, the motion must be denied. 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 ten (10) days after service of the Authority's decision or order . . . . The Authority's Supplemental Decision and Order and Direction of Second Election was dated and served on the IBPO by mail on May 31, 1984. Therefore, under section 2429.17 of the Authority's Rules and Regulations, and sections 2429.21 and 2429.22, which are also applicable to the computation of the time limit here involved, the IBPO's motion for reconsideration was due in the national office of the Authority before the close of business on June 18, 1984. Since, as indicated above, the IBPO's motion was not filed until July 9, 1984, it is clearly untimely and must be denied. Accordingly, for the reason set forth above, IT IS ORDERED that the motion for reconsideration in this case be, and it hereby is, denied. For the Authority. Issued, Washington, D.C., July 18, 1984 Jan K. Bohren Executive Director/Administrator PENNSYLVANIA STATE COUNCIL, ASSOCIATION OF CIVILIAN TECHNICIANS, INC. Union and THE ADJUTANT GENERAL OF PENNSYLVANIA Activity Case No. O-AR-304 DECISION This matter is before the Authority on exceptions to the award of Arbitrator James L. McEwen filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., July 17, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY MARINE CORPS AIR GROUND COMBAT CENTER, 29 PALMS, CALIFORNIA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2018, AFL-CIO Union Case No. O-AR-319 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Robert M. Leventhal filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., July 17, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY NATIONAL TREASURY EMPLOYEES UNION Union and U.S. CUSTOMS SERVICE Agency Case No. O-AR-364 DECISION This matter is before the Authority on exceptions to the award of Arbitrator James M. Harkless filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., July 17, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY MID-AMERICA PROGRAM SERVICE CENTER, SOCIAL SECURITY ADMINISTRATION, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, KANSAS CITY, MISSOURI Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, (NATIONAL COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS), LOCAL 1336 Union Case No. O-AR-376 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Gladys W. Gruenberg filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., July 17, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION V Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3400 Union Case No. O-AR-522 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Ann Harmon Miller filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7112(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., July 17, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY U.S. DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS Agency and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1438 Union Case No. O-AR-628 DECISION This matter is before the Authority on exceptions to the award of Arbitrator David L. Beckman filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Agency has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Agency's exceptions are denied. Issued, Washington, D.C., July 17, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY SOCIAL SECURITY ADMINISTRATION, MID-AMERICA PROGRAM SERVICE CENTER Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1336 Union Case No. O-AR-736 DECISION This matter is before the Authority on exceptions to the award of Arbitrator John R. Thornell filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., July 17, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY OFFICE OF PROGRAM SERVICE CENTERS, SOCIAL SECURITY ADMINISTRATION Activity and NATIONAL COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Union Case No. O-AR-737 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Anne Harmon Miller filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., July 17, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1336 Union and SOCIAL SECURITY ADMINISTRATION, MID-AMERICA PROGRAM SERVICE CENTER Activity Case No. O-AR-754 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Charles A. Fleming filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., July 17, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY OMAHA VETERANS ADMINISTRATION MEDICAL CENTER, OMAHA, NEBRASKA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2270, AFL-CIO Union Case No. O-AR-767 DECISION This matter is before the Authority on exceptions to the award of Arbitrator John M. Gradwohl filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., July 17, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ It is noted that the Union had previously submitted another proposal which is the subject of a separate negotiability appeal. /2/ In so ordering, the Authority makes no judgment as to the merits of Proposal VI and of course does not pass upon the question of whether the proposal was inconsistent with a Government-wide rule or regulation, an issue raised in the case and not resolved by the Court.