[ v13 p48 ]
13:0048(9)NG
The decision of the Authority follows:
13 FLRA No. 9
NATIONAL TREASURY
EMPLOYEES UNION
Union
and
INTERNAL REVENUE SERVICE,
DALLAS DISTRICT
Agency
Case No. O-NG-506
DECISION AND ORDER ON NEGOTIABILITY ISSUES
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), and raises issues
relating to the negotiability of two Union proposals. Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal 1
ARTICLE II
When general assignments of Austin EP (Employee Plans) and EO
(Exempt Organizations) employees to Houston geographical area
examination cases are required to clear up Houston backlogs,
assignment will be made on an equitable basis, without regard to
grade, sex, or group. Upon request an employee selected for a
certain assignment will be provided a written statement of reasons
as to why he/she has been selected over any other employee.
Based on the Agency's uncontroverted statement, the "Houston
backlogs" contain cases with disparate levels of difficulty and areas of
specialization. In this connection, the Agency also states, without
contradiction, that:
* * * grade and group are valid, work-related considerations,
since the level of work difficulty is often assigned on the basis
of an employee's grade level. Furthermore, in the IRS, employee
groups often specialize in different areas of expertise. /1/
The right "to assign work" pursuant to section 7106(a)(2)(B) of the
Statute includes the right to determine the particular employee to whom,
or positions to which, duties will be assigned. National Treasury
Employees Union and Department of the Treasury, Bureau of the Public
Debt, 3 FLRA 769, 775 (1980). Union proposal 1, however, would replace
the managerial discretion inherent in the right to assign work by
requiring that work be assigned "on an equitable basis, without regard
to grade . . . or group." Hence, as union proposal 1 would prevent
management from taking into account valid considerations in making work
assignments, it directly interferes with the Agency's right "to assign
work" and is outside the duty to bargain.
Union Proposal 2
ALTERNATIVE V
To the extent that the agency determines that both
determination and examination work are available for performance
by EP (Employee Plans) (employ)ees located in Austin, and that
both determination and examination work are included within EP
(employ)ees position descriptions, the agency will endeavor to
ensure that these EP (employ)ees are provided the opportunity to
perform both determination and examination work to the extent
necessary for them to maintain the required proficiency in both.
Contrary to the Agency's contention, union proposal 2 does not
interfere with management's right to assign employees or work under
section 7106(a)(2)(A) and (B) of the Statute. In this regard, the Union
points out that its proposal has a twofold purpose. First, the Union
states that its intent in making the proposal:
was not to shield employees from a particular assignment or to
require that all duties currently in their position description be
assigned. Rather, as a consequence of this proposal, if the
agency decides to assign particular duties to employees, it simply
would need to change the position descriptions accordingly. /2/
Second, the Union asserts that the proposal neither requires management
to assign any particular duties nor to establish any specified level of
proficiency as a performance standard. Rather, the proposal would
require only that "the employee would be allowed to assert in a
grievance concerning the application of a required proficiency standard
previously set by management that the standard as applied was unfair
given its impossibility of performance in the employee's particular
situation where management has not provided enough opportunity to
maintain this required proficiency." /3/ These statements of intent by
the Union are consistent with the plain language of proposal 2 and are
accordingly adopted for purposes of this Decision.
Thus, the first aspect of union proposal 2 is materially to the same
effect as Union Proposal II, designed to insure the accuracy of employee
position descriptions, which the Authority found to be negotiable in
American Federation of Government Employees, AFL-CIO, Local 1999 and
Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New
Jersey, 2 FLRA 153 (1979), enforced as to other matters sub nom.
Department of Defense v. Federal Labor Relations Authority, 659 F.2d
1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945
(1982). The second aspect of the proposal, concerning employee
proficiency, is to the same effect as Union Proposal 5 in American
Federation of Government Employees, AFL-CIO, Local 32 and Office of
Personnel Management, Washington, D.C., 3 FLRA 784 (1980) which the
Authority found to be negotiable because it established a general,
nonquantitative requirement by which management's application of its
critical elements and performance standards could subsequently be
evaluated in a grievance proceeding brought by an adversely affected
employee. Hence, for the reasons stated in the two cited cases, union
proposal 2 in its entirety is within the duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review relating to
Union Proposal 1 be, and it hereby is, dismissed. IT IS FURTHER ORDERED
that the Agency shall upon request (or as otherwise agreed to by the
parties) bargain concerning Union Proposal 2. /4/ Issued, Washington,
D.C., September 19, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Agency Statement of Position at 4.
/2/ Union Reply Brief at 8.
/3/ Id. at 9.
/4/ In deciding that union proposal 2 is within the duty to bargain,
the Authority makes no judgment as to its merits.