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National Treasury Employees Union v. Federal Labor Relations Authority

United States Court of Appeals, Fourth Circuit

December 6, 2013

NATIONAL TREASURY EMPLOYEES UNION, Petitioner,
v.
FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

Argued: Oct. 29, 2013.

Page 274

ARGUED:

Peyton H.N. Lawrimore, National Treasury Employees Union, Washington, D.C., for Petitioner.

Zachary Robert Henige, Federal Labor Relations Authority, Washington, D.C., for Respondent.

ON BRIEF:

Gregory O'Duden, General Counsel, Larry J. Adkins, Deputy Union, Washington, Solicitor, Federal for Respondent.

General Counsel, National Treasury Employees D.C., for Petitioner.

Rosa M. Koppel, Labor Relations Authority, Washington, D.C., for Respondent.

Before TRAXLER, Chief Judge, and WILKINSON and FLOYD, Circuit Judges.

Petition denied by published opinion. Judge WILKINSON wrote the opinion, in which Chief Judge TRAXLER and Judge FLOYD joined.

WILKINSON, Circuit Judge.

The National Treasury Employees Union (NTEU) sought to amend its collective bargaining agreement with the Internal Revenue Service (IRS) to permit probationary employees to use the agreement's grievance procedures to challenge removals alleged to be in violation of statutory rights or procedures. The IRS refused to negotiate over NTEU's proposal on the grounds that the proposal would grant probationary employees greater procedural protections than were authorized under law and regulation. NTEU appealed to the Federal Labor Relations Authority (FLRA), which held for the IRS. NTEU now asks us to reverse the FLRA and find its proposal negotiable. We decline to do so because such a decision would ignore both the statutory and regulatory frameworks that Congress and the executive branch have put in place, create a stark circuit split, and overturn nearly thirty years of settled public-employee practice.

I.

A.

Most federal agencies, including the IRS, are required by law to " negotiate in good faith" with public-sector unions " for the purposes of arriving at a collective bargaining agreement." 5 U.S.C. § 7114(a)(4); see also id. § 7103(a)(3) (defining " agency" ); id. § 7116(a)(5) (listing the refusal to negotiate in good faith as an unfair labor practice); NRC v. FLRA, 25 F.3d 229, 231 (4th Cir.1994). Such agreements must, subject to certain limited exceptions, contain " procedures for the settlement of grievances, including questions of arbitrability." 5 U.S.C. § 7121(a)(1). A " grievance" encompasses " any complaint ... by any employee concerning any matter relating to the employment of the employee." Id. § 7103(a)(9). However,

Page 275

5 U.S.C. § 7117 limits the good-faith-negotiation requirement to provisions that are " not inconsistent with any Federal law or any Government-wide rule or regulation." Id. ...


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