National Treasury Employees Union, Chapter 66 (Union) and Internal Revenue Service, Kansas City Service Center (Activity) 

 

 1 FLRA No. 106
 
 NATIONAL TREASURY EMPLOYEES UNION
 CHAPTER 66
 (Union)
 
 and
 
 INTERNAL REVENUE SERVICE,
 KANSAS CITY SERVICE CENTER
 (Activity)
 
                                            Case No. 0-NG-19
 
                      DECISION ON NEGOTIABILITY ISSUE
 
                              UNION PROPOSAL
 
    THE UNION PROPOSED IN ESSENCE TO MAINTAIN THE "PRESENT SHIFTS" IN THE
 TAXPAYER ASSISTANCE SECTION, I.E., 6:30 A.M. TO 3:00 P.M., 7:00 A.M. TO
 3:30 P.M., 7:20 A.M. TO 3:50 P.M.  /1/
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS A MATTER WITHIN THE
 AGENCY'S DUTY TO BARGAIN UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS (FSLMR) STATUTE OR, AS ALLEGED BY THE AGENCY, IS A MATTER
 WITHIN THE AMBIT OF SECTION
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL DOES NOT CONCERN A MATTER WHICH IS
 NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER SECTION 7106(B)(1)
 OF THE FSLMR STATUTE.  ACCORDINGLY, PURSUANT TO 2424.8 OF THE
 AUTHORITY'S RULES AND REGULATIONS (44 FED.REG. 44740 ET SEQ. (1979)),
 THE AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE
 DUTY TO BARGAIN IS SET ASIDE.
 
    REASONS:  UNDER THE PLAIN LANGUAGE OF SECTION 7106(B)(1) OF THE
 STATUTE (AND IN THE ABSENCE OF ANY CONTRARY INDICATION IN THE
 LEGISLATIVE HISTORY OF SUCH LANGUAGE) THE CLEAR MEANING OF THIS SECTION
 IS TO RENDER THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES ASSIGNED TO A
 TOUR OF DUTY NEGOTIABLE AT THE AGENCY'S ELECTION.  /3/ A PROPOSAL
 OTHERWISE CONSISTENT WITH THE STATUTE, WHICH, BY ITS DIRECT OR INTEGRAL
 RELATIONSHIP TO THE NUMBERS, TYPES, OR GRADES OF EMPLOYEES OR POSITIONS
 ASSIGNED TO A TOUR OF DUTY, WOULD BE DETERMINATIVE OF SUCH (LINE(S) OF
 SOURCE COPY CUT OFF BY COPY MACHINE) EXPLICITLY RELATE TO THE NUMBERS,
 TYPES, AND GRADES OF EMPLOYEES ASSIGNED TO THE TOUR OF DUTY OR TO THE
 ORGANIZATIONAL SUBDIVISION HEREIN, SO AS TO COME WITHIN THE LITERAL
 LANGUAGE OF SECTION 7106(B)(1).
 
    FURTHER, CONTRARY TO THE AGENCY'S UNSUPPORTED ASSERTIONS, THE RECORD
 DOES NOT DISCLOSE THAT THE PROPOSAL IS IN ANY MANNER DIRECTLY OR
 INTEGRALLY RELATED TO THE NUMBERS, TYPES, OR GRADES OF THE EMPLOYEES OR
 POSITIONS OF THE TOUR OF DUTY OR ORGANIZATIONAL SUBDIVISION INVOLVED
 HEREIN SO AS TO BE DETERMINATIVE OF SUCH NUMBERS, TYPES, AND GRADES.
 RATHER, THE RECORD INDICATES THAT THE AGENCY MAINTAINS TWO STARTING
 TIMES AND TWO QUITTING TIMES FOR THE TAXPAYER ASSISTANCE SECTION:
 NAMELY, STARTING TIMES OF 6:30 A.M. AND 7:20 A.M. AND QUITTING TIMES OF
 3:00 P.M. AND 3:50 P.M.  THUS, THE REINSTITUTION OF THE 7 A.M. STARTING
 TIME AND THE 3:30 P.M. QUITTING TIME PROPOSED BY THE UNION WOULD FALL
 WITHIN THE RANGE OF STARTING AND QUITTING TIMES ESTABLISHED BY THE
 AGENCY.  IN PRACTICAL EFFECT, THEREFORE, IT APPEARS FROM THE RECORD IN
 THE CASE THAT IMPLEMENTATION OF THE PROPOSAL WOULD AMOUNT TO A
 RELATIVELY MINOR ADJUSTMENT IN THE STARTING AND QUITTING TIMES OF THE
 EMPLOYEES ASSIGNED TO THE TOUR OF DUTY OF THIS ORGANIZATIONAL
 SUBDIVISION.
 
    IMPLEMENTATION OF THE PROPOSAL WOULD NOT AFFECT THE AGENCY'S
 POSITIONS OR PERSONNEL IN A MANNER WHICH WOULD BE DETERMINATIVE OF THE
 NUMBERS, TYPES, OR GRADES OF THE EMPLOYEES OR POSITIONS ASSIGNED TO THE
 TOUR OF DUTY OR TO THE ORGANIZATIONAL SUBDIVISION, I.E., TAXPAYER
 ASSISTANCE SECTION.  AS STATED PREVIOUSLY, THERE IS NO INDICATION IN THE
 RECORD, BEYOND THE UNSUPPORTED ASSERTION OF THE AGENCY, THAT
 IMPLEMENTATION OF THE PROPOSAL WOULD IN ANY WAY AFFECT THE NUMBERS,
 TYPES, AND GRADES OF SUCH POSITIONS OR PERSONNEL.  THE UNION'S PROPOSAL
 RELATES ONLY TO PERMITTING A MODICUM OF FLEXIBILITY WITHIN THE RANGE OF
 STARTING AND QUITTING TIMES FOR THE EXISTING TOUR OF DUTY.
 
    IN SUMMARY, THE AGENCY HAS NOT DEMONSTRATED THAT THE SUBJECT
 PROPOSAL, WITHIN THE CIRCUMSTANCES OF THIS PARTICULAR CASE, WOULD BE
 DETERMINATIVE OF THE NUMBERS, TYPES, OR GRADES OF EMPLOYEES OR POSITIONS
 AND, CONSEQUENTLY, NEGOTIABLE AT THE ELECTION OF THE AGENCY UNDER
 SECTION 7106(B)(1) OF THE STATUTE.
 
    THEREFORE, THE PROPOSAL AT ISSUE IS A MATTER WITHIN THE AGENCY'S DUTY
 TO BARGAIN UNDER THE STATUTE, AND THE AGENCY'S ALLEGATION THAT THE
 PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN MUST BE SET ASIDE.  /5/
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 13, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                   FEDERAL LABOR RELATIONS AUTHORITY /6/
 
    /1/ IT APPEARS THAT THIS DISPUTE AROSE AS A RESULT OF THE ACTIVITY'S
 DECISION TO ELIMINATE THE 7 A.M. STARTING TIME AND THE 3:30 P.M.
 QUITTING TIME WITHIN THE TAXPAYER ASSISTANCE SECTION.  THE UNION'S
 PROPOSAL ESSENTIALLY WOULD REQUIRE THE ACTIVITY TO REINSTITUTE THE
 ELIMINATED STARTING AND QUITTING TIMES WITHIN THE SECTION.  WHILE THE
 UNION'S APPEAL, AS SUBMITTED, CONTAINED NUMEROUS OTHER PROPOSALS
 CONCERNING THE IMPACT OF THE ACTIVITY'S DECISION, THESE OTHER PROPOSALS
 WERE WITHDRAWN FROM DISPUTE.
 
    /2/ SECTION 7106(B)(1) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (92 STAT. 1198) PROVIDES:
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
    (1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
 OF EMPLOYEES OR
 
    POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
 OR TOUR OF DUTY, OR ON THE
 
    TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK(.)
 
    /3/ CONCERNING THE NATURE OF THE AGENCY'S OBLIGATION TO NEGOTIATE
 OVER NUMBERS, TYPES, AND GRADES OF EMPLOYEES ASSIGNED TO A TOUR OF DUTY,
 THE FOLLOWING EXCHANGE OCCURRED DURING THE FLOOR DEBATE ON THE FINAL
 VERSION OF SECTION 7106:
 
    MR. EDWARDS OF ALABAMA.  THE EXECUTIVE ORDER SAYS THAT THERE SHALL BE
 NO OBLIGATION TO MEET
 
    AND CONFER ON "NUMBERS, TYPES, AND GRADES OF POSITIONS OR EMPLOYEES
 ASSIGNED TO AN
 
    ORGANIZATIONAL UNIT, WORK PROJECT, OR TOUR OF DUTY," AND SO FORTH;
 IN OTHER WORDS, DOWN AT THE
 
    BASE LEVEL IN THE CASE OF A DEFENSE FACILITY, FOR EXAMPLE.  YET, IN
 THE UDALL SUBSTITUTE IT
 
    SAYS THEY ARE NOT "PRECLUDED" FROM MEETING AND CONFERRING WHICH
 SUGGESTS THAT UNDER THE HEAT
 
    OF BARGAINING THEY IN FACT COULD NEGOTIATE AND BARGAIN AT THAT LEVEL.
  IS THE DEFENSE
 
    DEPARTMENT OR ANY OTHER FEDERAL AGENCY, FOR THAT MATTER, REQUIRED TO
 BARGAIN ON THOSE
 
    PARTI