National Treasury Employees Union and NTEU Chapter 95 (Union) and Department of the Treasury, Internal Revenue Service, Midwest Region (Activity) 

 



[ v02 p470 ]
02:0470(65)NG
The decision of the Authority follows:


 2 FLRA No. 65
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU CHAPTER 95
 (Union)
 
 and
 
 DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE,
 MIDWEST REGION
 (Activity)
 
                                            Case No. 0-NG-150
 
                     DECISION ON NEGOTIABILITY APPEAL
 
    DURING THE TERM OF THE PARTIES' AGREEMENT, THE UNION REQUESTED
 NEGOTIATIONS ON THE FOLLOWING MATTERS;
 
    (1) THE SUBSTANCE, IMPACT AND IMPLEMENTATION OF THE DECISION TO
 CHANGE THE EMPLOYMENT
 
    CONDITIONS OF APPEALS OFFICERS BY ASSIGNING THEM WORK OUTSIDE THE
 SCOPE OF THEIR POSITION
 
    DESCRIPTIONS, AND
 
    (2) THE SUBSTANCE, IMPACT AND IMPLEMENTATION OF THE ASSIGNMENT OF
 LEGAL RESEARCH ASSISTANTS
 
    (LRA'S).
 
    THE ACTIVITY RESPONDED IN WRITING TO THE UNION'S REQUEST TO NEGOTIATE
 ON THESE MATTERS, STATING, GENERALLY, THAT THERE WAS NO OBLIGATION TO
 NEGOTIATE BECAUSE THE SUBSTANCE OF THE MATTERS AT ISSUE CONCERNED RIGHTS
 RESERVED TO MANAGEMENT UNDER 5 U.S... 7106(A)(2).  /1/ THE ACTIVITY ALSO
 STATED THAT NO CHANGE IN WORKING CONDITIONS HAD OCCURRED TO GIVE RISE TO
 AN OBLIGATION TO NEGOTIATE AS TO EITHER MATTER CONCERNING WHICH THE
 UNION HAD REQUESTED BARGAINING, EVEN WITH RESPECT TO IMPACT AND
 IMPLEMENTATION.
 
    THE UNION SUBSEQUENTLY PETITIONED THE AUTHORITY FOR A NEGOTIABILITY
 DETERMINATION ON THE IMPACT OF (1) THE ASSIGNMENT OF LRA'S, AND (2) THE
 USE OF DETAILS.  THE UNION ALLEGED THAT THE ASSIGNMENT OF LRA'S HAD
 CHANGED FROM A TEST PROGRAM TO A PERMANENT PROGRAM, AND THAT THE
 WORKING
 CONDITIONS OF APPEALS OFFICERS HAD BEEN CHANGED BY THEIR ASSIGNMENT TO
 WORK OUTSIDE THE SCOPE OF THEIR POSITION DESCRIPTIONS.
 
    THE ACTIVITY FILED A STATEMENT WITH THE AUTHORITY ASSERTING, AMONG
 OTHER CONTENTIONS, THAT THE UNION HAD NOT SUBMITTED ANY SPECIFIC
 PROPOSALS WITH RESPECT TO THE IMPACT AND IMPLEMENTATION OF MANAGEMENT'S
 DECISION TO DETAIL APPEALS OFFICERS.  MOREOVER, THE UNION DID NOT
 PROVIDE THE AUTHORITY WITH ANY SPECIFIC PROPOSAL ON THE MATTERS WHICH IT
 SEEKS TO NEGOTIATE.
 
    IN ALL MATERIAL RESPECTS, THIS CASE IS SUBSTANTIALLY IDENTICAL TO
 ASSOCIATION OF CIVILIAN TECHNICIANS, ALABAMA ACT AND STATE OF ALABAMA
 NATIONAL GUARD, CASE NO.  O-NG-27, 2 FLRA NO. 39(DEC. 28, 1979), REPORT
 NO.  .  IN THAT CASE THE AUTHORITY DECIDED THAT A PETITION WHICH NEVER
 PRESENTED A PROPOSAL SUFFICIENTLY SPECIFIC AND DELIMITED IN FORM AND
 CONTENT AS TO PERMIT THE AUTHORITY TO RENDER A NEGOTIABILITY DECISION
 DID NOT MEET THE CONDITIONS FOR REVIEW.  FOR THE REASONS FULLY SET FORTH
 IN THAT DECISION, THE INSTANT PETITION DOES NOT MEET THE CONDITIONS FOR
 REVIEW PRESCRIBED IN SECTION 7117 OF THE STATUTE AND SECTION 2424.1 OF
 THE AUTHORITY'S RULES OF PROCEDURE.
 
    ADDITIONALLY, TO THE EXTENT THAT THIS CASE AROSE OUT OF ALLEGED
 UNILATERAL CHANGES IN WORKING CONDITIONS AND A DEFENSE, ESSENTIALLY,
 THAT NO CHANGES HAVE OCCURRED, THE PROPER FORUM IN WHICH TO RAISE THESE
 ISSUES IS NOT A NEGOTIABILITY APPEAL, BUT WOULD BE AN UNFAIR LABOR
 PRACTICE PROCEEDING PURSUANT TO SECTION 7118 OF THE STATUTE.  IN THIS
 REGARD, RESOLUTION OF THE INSTANT DISPUTE IS DEPENDENT UPON THE
 RESOLUTION OF FACTUAL ISSUES RELATED TO THE PARTIES' CONDUCT.  SUCH
 FACTUAL DETERMINATIONS CAN BEST BE ACCOMPLISHED THROUGH USE OF THE
 INVESTIGATORY AND FORMAL HEARING PROCEDURES SET FORTH IN PART 2423 OF
 THE AUTHORITY'S RULES AND REGULATIONS WHICH GOVERN UNFAIR LABOR PRACTICE
 PROCEEDINGS (44 FED. REG. 44760 ET SEQ.(1979)).  AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1931 AND DEPARTMENT OF THE NAVY,
 NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, CASE NO. O-NG-55, 2 FLRA NO.
 19(DEC. 5, 1979), REPORT NO.  ;  NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1141 AND DEPARTMENT OF THE INTERIOR, BUREAU OF MINES,
 ALBANY METALLURGY RESEARCH CENTER, ALBANY, OREGON, CASE NO. O-NG-80, 2
 FLRA NO. 28(DEC.  13, 1979), REPORT NO.  .
 
    IN CONCLUSION, THE UNION'S APPEAL DOES NOT MEET THE CONDITIONS FOR
 REVIEW UNDER SECTION 7117 OF THE STATUTE AND PART 2424 OF THE
 AUTHORITY'S RULES AND REGULATIONS.  ACCORDINGLY, THE APPEAL IS
 DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JANUARY 18, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ SECTION 7106(A)(2)(92 STAT. 1198)(1978) PROVIDES:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY
 AGENCY --
 
   *          *          *          *
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS --
 
    (A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
 AGENCY, OR TO SUSPEND, REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER
 DISCIPLINARY ACTION AGAINST SUCH EMPLOYEES;
 
    (B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND TO DETERMINE THE PERSONNEL BY WHICH AGENCY
 OPERATIONS SHALL BE CONDUCTED;
 
    (C) WITH RESPECT TO FILLING POSITIONS, TO MAKE SELECTIONS FOR
 APPOINTMENTS FROM --
 
    (I) AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION;  OR
 
    (II) ANY OTHER APPROPRIATE SOURCE;  AND
 
    (D) TO TAKE WHATEVER ACTIONS MAY BE NECESSARY TO CARRY OUT THE AGENCY
 MISSION DURING EMERGENCIES.