National Treasury Employees Union, Chapter 6 (Union) and Internal Revenue Service, New Orleans District Office (Activity) 

 1 FLRA No. 102
 
 NATIONAL TREASURY EMPLOYEES UNION,
 CHAPTER 6
 (Union)
 
 and
 
 INTERNAL REVENUE SERVICE,
 NEW ORLEANS DISTRICT OFFICE
 (Activity)
 
                                            Case No. 0-NG-9
 
                      DECISION ON NEGOTIABILITY ISSUE
 
                               PROVISION /1/
 
    A.  R.O.'S (REVENUE OFFICERS) MAY REQUEST DAILY OR CONTINUOUS
 PERMISSION TO WORK IN/OUT OF
 
    THEIR RESIDENCES.
 
    B.  BASED UPON A REVENUE OFFICER'S REQUEST AND THE REASONS PRESENTED,
 THE EMPLOYER WILL
 
    CONSIDER THE FOLLOWING CRITERIA IN EXERCISING THE AUTHORITY TO GRANT
 OR DENY THE REQUEST:
 
    1.  THE REASONABLENESS OF THE REQUEST;
 
    2.  THE WORKABILITY OF THE REQUEST;  AND
 
    3.  THE EFFECT OF THE REQUEST UPON THE EFFICIENCY OF THE SERVICE.
 
    C.  THE EMPLOYER AGREES THAT ALL DETERMINATIONS WILL BE MADE IN A
 FAIR, OBJECTIVE AND
 
    EQUITABLE MANNER.
 
    D.  UPON THE EMPLOYEE'S REQUEST, THE MANAGER WILL IDENTIFY AND
 DISCUSS THE REASON(S) UPON
 
    WHICH THE DENIAL IS BASED.
 
    E.  CONTINUOUS PERMISSION, ONCE GRANTED, MAY BE SUBJECT TO PERIODIC
 REVIEW BY THE GROUP
 
    MANAGER AND MAY BE WITHDRAWN UPON A NEW, CONTRARY DETERMINATION OF
 THE CRITERIA CONTAINED IN
 
    "B" ABOVE.
 
    F.  THE PARTIES AGREE THAT THIS IS A LOCAL SUPPLEMENTAL AGREEMENT,
 AND IT SUPPLEMENTS
 
    MDA-3.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE DISPUTED PROVISION OF THE PARTIES'
 LOCALLY NEGOTIATED AGREEMENT VIOLATES SECTION 7106(A) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS (FSLMR) STATUTE, AS ALLEGED GENERALLY
 BY THE AGENCY.  /2/
 
                                  OPINION
 
    CONCLUSION:  THE PROVISION DOES NOT VIOLATE SECTION 7106 OF THE FSLMR
 STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S
 RULES AND REGULATIONS (44 FED.REG. 44740 ET SEQ. (1979)), THE AGENCY'S
 ALLEGATION THAT THE DISPUTED PROVISION IS NOT WITHIN THE DUTY TO BARGAIN
 BECAUSE IT VIOLATES THAT SECTION OF THE STATUTE IS SET ASIDE.  /3/
 
    REASONS:  THE RECORD BEFORE THE AUTHORITY INDICATES THAT MANAGEMENT'S
 PRACTICE IN THE BARGAINING UNIT INVOLVED IS TO GRANT EMPLOYEES' REQUESTS
 TO WORK FROM THEIR HOMES UNDER CERTAIN CIRCUMSTANCES.  /4/ THE UNION
 ARGUES THAT THE PROVISION DISPUTED IN THE INSTANT CASE IS WITHIN THE
 DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE /5/ SINCE IT
 CONSTITUTES MERELY THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN
 EXERCISING ITS RETAINED RIGHTS IN CONNECTION WITH THE PRACTICE OF
 SOMETIMES ALLOWING AN EMPLOYEE TO WORK FROM HIS OR HER HOME.  THE
 AGENCY, AS INDICATED, CONTENDS THAT THE PROVISION VIOLATES MANAGEMENT'S
 RIGHTS UNDER SECTION 7106(A) OF THE STATUTE.  /6/
 
    SECTION 7106 OF THE STATUTE SPECIFIED, IN SUBSECTION (A), VARIOUS
 RIGHTS RESERVED TO AGENCY MANAGEMENT.  /7/ SUBSECTION (B), HOWEVER,
 PROVIDES THAT MANAGEMENT'S EXERCISE OF ANY RIGHTS CONTAINED IN
 SUBSECTION (A) DOES NOT PRECLUDE NEGOTIATIONS ON THE PROCEDURES WHICH
 MANAGEMENT OFFICIALS WILL OBSERVE IN EXERCISING THOSE RIGHTS.  /8/ THE
 LEGISLATIVE HISTORY OF THE STATUTE REFLECTS THE INTENT, IN REGARD TO THE
 DUTY TO BARGAIN ON THE PROCEDURES MANAGEMENT WILL OBSERVE IN EXERCISING
 ANY RESERVED RIGHTS UNDER THE STATUTE, TO AUTHORIZE UNIONS TO NEGOTIATE
 FULLY ON SUCH PROCEDURES, UNLESS SUCH NEGOTIATIONS WOULD PREVENT THE
 AGENCY FROM ACTING AT ALL.  /9/
 
    TURNING TO THE DISPUTED PROVISION, IT PRINCIPALLY RELATES, AS A
 WHOLE, TO AGENCY MANAGEMENT'S GRANTING OR DENYING THE REQUEST OF
 INDIVIDUAL MEMBERS OF THE BARGAINING UNIT (REVENUE OFFICERS) TO WORK
 "IN/OUT OF THEIR RESIDENCES." SECTION A WHICH IS NOT IN DISPUTE MERELY
 REFLECTS THE EXISTENCE OF THE AGENCY'S PRACTICE TO CONSIDER SUCH
 REQUESTS.  (AS NOTED BEFORE, THE UNION TACITLY CONCEDES THAT THE
 EXISTENCE AND CONTINUATION OF THIS PRACTICE IS A MATTER SOLELY RESERVED
 TO MANAGEMENT'S DISCRETION.) SECTIONS B, C, AND E, DISPUTED HEREIN,
 DELINEATE THE PROCEDURES WHICH MANAGEMENT WILL FOLLOW WHEN CONSIDERING
 SUCH REQUESTS.  IN THIS REGARD, SECTION B ESTABLISHES "REASONABLENESS,"
 "WORKABILITY" AND "EFFECT OF THE REQUEST UPON THE EFFICIENCY OF THE
 SERVICE" AS CRITERIA WHICH MANAGEMENT MUST CONSIDER IN EXERCISING ITS
 AUTHORITY TO GRANT OR DENY A REQUEST.  THESE CRITERIA (WHICH
 DERIVATIVELY APPLY ALSO UNDER SECTION E) ARE VERY GENERAL AND ARE NOT
 EXCLUSIVE:  THE LANGUAGE OF THE PROVISION DOES NOT SPECIFY THEIR
 EXCLUSIVITY AND, FURTHERMORE, THE UNION UNEQUIVOCALLY STATES IN THE
 RECORD BEFORE THE AUTHORITY THAT THEY ARE NOT EXCLUSIVE BUT ARE TO BE
 APPLIED BY THE RESPONSIBLE MANAGEMENT OFFICIAL "AMONG ANY OTHER CRITERIA
 HE OR SHE WISHES TO CONSIDER." SECTION C MERELY ESTABLISHES A GENERAL
 STANDARD FOR MANAGEMENT'S DETERMINATIONS WITH REGARD TO EMPLOYEE
 REQUESTS:  THAT THEY BE FAIR, OBJECTIVE AND EQUITABLE.  SECTION E MAKES
 THE NONEXCLUSIVE CRITERIA FOR GRANTING OR DENYING REQUESTS, MENTIONED
 ABOVE, APPLICABLE ALSO TO EXERCISES OF MANAGEMENT DECISIONAL AUTHORITY
 TO CONTINUE OR WITHDRAW PERMISSION, PREVIOUSLY GRANTED, FOR AN EMPLOYEE
 TO WORK FROM HIS OR HER RESIDENCE.
 
    IT IS PLAIN FROM THE LANGUAGE OF SECTIONS B, C, AND E OF THE
 PROVISION AND FROM THE UNION'S CLEAR STATEMENT TO THE AUTHORITY
 REGARDING THE NONEXCLUSIVITY OF THE CRITERIA ESTABLISHED IN SECTION B,
 THAT THESE SECTIONS SOLELY ARE CONCERNED WITH THE PROCEDURES WHICH
 MANAGEMENT WILL OBSERVE IN DETERMINING WHETHER TO GRANT, DENY OR, HAVING
 ONCE GRANTED, TO CONTINUE OR WITHDRAW PERMISSION FOR A BARGAINING UNIT
 MEMBER TO WORK FROM HIS OR HER HOME IN ACCORDANCE WITH EXISTING AGENCY
 PRACTICE.  FURTHERMORE, THERE IS NO SHOWING THAT THESE PROCEDURES WILL
 PREVENT MANAGEMENT FROM ACTING AT ALL ON EMPLOYEES' REQUEST FOR SUCH
 PERMISSION.  ACCORDINGLY, THE PROCEDURES IN QUESTION ARE WITHIN THE DUTY
 TO BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE /10/ AND THE AGENCY'S
 ALLEGATION TO THE CONTRARY MUST BE SET ASIDE.
 
    FINALLY, SECTION F OF THE PROVISION STATES THAT "THE PARTIES AGREE
 THAT THIS IS A LOCAL AGREEMENT SUPPLEMENTING 'MDA-3'" (APPARENTLY
 ADVERTING TO AN AGREEMENT BETWEEN THE PARTIES AT A HIGHER LEVEL).  THE
 AGENCY PROVIDES NO SUPPORT OR EXPLANATION FOR ITS ALLEGATION THAT
 SECTION F OF THE PROVISION VIOLATES SECTION 7106 OF THE STATUTE AND NO
 VIOLATION IS OTHERWISE APPARENT FROM THE RECORD IN THIS CASE.
 ACCORDINGLY THE ALLEGATION OF THE AGENCY THAT SECTION F OF THE PROVISION
 IS NOT WITHIN THE