National Treasury Employees Union and National Treasury Employees Union, Chapter 71 (Union) and Internal Revenue Service, Philadelphia Service Center, Philadelphia, Pennsylvania (Agency)

 



[ v04 p796 ]
04:0796(103)NG
The decision of the Authority follows:


 4 FLRA No. 103
 
 NATIONAL TREASURY EMPLOYEES
 UNION AND NATIONAL TREASURY
 EMPLOYEES UNION, CHAPTER 71
 Union
 
 and
 
 INTERNAL REVENUE SERVICE,
 PHILADELPHIA SERVICE CENTER,
 PHILADELPHIA PENNSYLVANIA
 Agency
 
                                            Case No. O-NG-113
 
            DECISION AND ORDER DISMISSING NEGOTIABILITY APPEAL
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
    THE RECORD BEFORE THE AUTHORITY IN THIS CASE INDICATES THAT THE
 NATIONAL TREASURY EMPLOYEES UNION (THE UNION) AND THE INTERNAL REVENUE
 SERVICE (THE AGENCY) WERE PARTIES TO A COLLECTIVE BARGAINING AGREEMENT,
 MULTI-CENTER AGREEMENT II, WHICH COVERED EMPLOYEES AT THE AGENCY'S
 PHILADELPHIA SERVICE CENTER.  /1/ ACCORDING TO THE AGENCY, THOUGH THIS
 AGREEMENT EXPIRED IN OCTOBER, 1978, ITS TERMS AND CONDITIONS CONTINUE IN
 EFFECT DURING NATIONAL LEVEL BARGAINING ON A NEW AGREEMENT.  /2/
 
    WHILE THE PARTIES WERE ENGAGED IN BARGAINING ON A NEW AGREEMENT AT
 THE NATIONAL LEVEL, I.E., AT THE LEVEL OF EXCLUSIVE RECOGNITION,
 INCLUDING BARGAINING ON MATTERS PERTAINING TO PERFORMANCE APPRAISAL
 SYSTEMS, THE UNION REQUESTED THE OPPORTUNITY TO BARGAIN WITH MANAGEMENT
 OFFICIALS AT THE PHILADELPHIA SERVICE CENTER OVER THE SUBSTANCE, IMPACT,
 AND IMPLEMENTATION OF "PERFORMANCE EXPECTATIONS" WHICH MANAGEMENT
 PROPOSED TO EFFECTUATE AT THE CENTER.  THE UNION SUBMITTED TO AGENCY
 MANAGEMENT AT THE SERVICE CENTER SEVERAL PROPOSALS WHICH RELATED TO THE
 SUBSTANCE OF THE PROPOSED "PERFORMANCE EXPECTATIONS" AND TO THE
 PROCEDURES TO BE USED IN DISCIPLINING EMPLOYEES WHO FAIL TO MEET THE
 REQUIREMENTS OF APPLICABLE "PERFORMANCE EXPECTATIONS." SUBSEQUENTLY, THE
 AGENCY ADVISED THE UNION OF ITS INTENT TO IMPLEMENT THE PROPOSED
 "PERFORMANCE EXPECTATIONS," ALLEGING IN ESSENCE THAT SUCH "EXPECTATIONS"
 ARE NOT SUBJECT TO NEGOTIATION.
 
    THE UNION FILED THE INSTANT PETITION FOR REVIEW WITH THE AUTHORITY.
 THE AGENCY, IN ITS STATEMENT OF POSITION, ASSERTS THAT THE SUBJECT
 MATTER OF THE UNION'S PROPOSALS IS CURRENTLY BEING NEGOTIATED BY THE
 PARTIES AT THE NATIONAL LEVEL AND, THEREFORE, THAT IT HAS NO OBLIGATION
 TO NEGOTIATE THE SAME MATTERS WITH THE UNION AT THE PHILADELPHIA SERVICE
 CENTER, I.E., BELOW THE LEVEL OF EXCLUSIVE RECOGNITION.  IN THIS
 CONNECTION, THE AGENCY CONTENDS THAT CERTAIN PARTS OF THE UNION'S
 PROPOSALS RELATING TO PROCEDURES ARE COVERED BY THE TERMS OF THE
 PARTIES' MULTI-CENTER AGREEMENT II.  THE AGENCY ARGUES IN THIS REGARD
 THAT IT HAS NO OBLIGATION TO BARGAIN ON THOSE PARTS OF THE UNION'S
 PROPOSALS BECAUSE IT HAS EFFECTED NO CHANGE RELATED TO THE SUBJECT
 MATTER OF THOSE PROPOSALS AND, THUS, SUCH MATTERS CONTINUE TO BE
 GOVERNED BY THE TERMS OF THE PARTIES' AGREEMENT.  IN RESPONSE, THE UNION
 CONTENDS THE AGENCY HAS NOT FULFILLED ITS OBLIGATION TO BARGAIN BY
 NEGOTIATING WITH THE UNION AT THE NATIONAL LEVEL, SINCE THE AGENCY HAS
 REFUSED TO NEGOTIATE AT THAT LEVEL ON THE SUBSTANCE OF PERFORMANCE
 STANDARDS.
 
    WHILE THE RECORD IN THIS CASE IS NOT CLEAR IN ALL RESPECTS, THE
 UNDERLYING DISPUTE BETWEEN THE PARTIES CONCERNS WHETHER THE AGENCY HAS
 AN OBLIGATION TO BARGAIN WITH THE UNION CONCERNING PERFORMANCE STANDARDS
 AT THE LEVEL OF THE PHILADELPHIA SERVICE CENTER WHILE BARGAINING OVER
 THAT SAME MATTER IS TAKING PLACE AT THE NATIONAL LEVEL OF EXCLUSIVE
 RECOGNITION.  THAT IS, THE AGENCY PROPOSED A UNILATERAL CHANGE IN THE
 PERFORMANCE STANDARDS APPLICABLE TO EMPLOYEES AT THE PHILADELPHIA
 SERVICE CENTER DURING THE TIME IT WAS IN ENGAGED IN COLLECTIVE
 BARGAINING WITH THE UNION AT THE NATIONAL LEVEL ON THE SUBJECT MATTER OF
 THE PROPOSED CHANGE.  THE AGENCY'S ACTION IS ASSOCIATED WITH, IN
 ESSENCE, A REFUSAL TO BARGAIN ON THE SUBSTANCE OF PERFORMANCE STANDARDS
 AT THE LOCAL LEVEL AND A DEFENSE THAT THE AGENCY'S OBLIGATION TO BARGAIN
 OVER THE SUBJECT MATTER IS BEING DISCHARGED AT THE LEVEL OF EXCLUSIVE
 RECOGNITION.  THUS, THE FUNDAMENTAL ISSUE BETWEEN THE PARTIES CONCERNS
 THE EXISTENCE OF AN OBLIGATION TO BARGAIN AT THE LOCAL LEVEL IN THE
 CIRCUMSTANCES OF THIS CASE.  THE PROPER FORUM IN WHICH TO RAISE THIS
 ISSUE IS NOT A NEGOTIABILITY APPEAL BUT WOULD BE AN UNFAIR LABOR
 PRACTICE PROCEEDING PURSUANT TO SECTION 7118 OF THE STATUTE.  SEE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2879 AND
 SOCIAL SECURITY ADMINISTRATION, SAN DIEGO, CALIFORNIA, 2 FLRA NO.
 93(1980).
 
    ADDITIONALLY, THE AGENCY CONTENDS THAT IT HAS PROPOSED NO CHANGE
 WHICH WOULD GIVE RISE TO AN OBLIGATION TO BARGAIN CONCERNING THE UNION'S
 PROCEDURAL PROPOSALS AND THAT SUCH MATTERS CONTINUE TO BE GOVERNED BY
 THE PARTIES' NEGOTIATED AGREEMENT.  IN THIS RESPECT, THE CIRCUMSTANCES
 HEREIN ARE NOT MATERIALLY DIFFERENT FROM THE CIRCUMSTANCES IN AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL COUNCIL OF EEOC
 LOCALS AND EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 4 FLRA NO. 61(1980)
 AND NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY,
 U.S.  CUSTOMS SERVICE, WASHINGTON, D.C., 4 FLRA NO. 62(1980).  IN THOSE
 CASES, THE AUTHORITY DETERMINED THAT THE PARTIES' DISPUTE ESSENTIALLY
 CONCERNED WHETHER THERE HAD BEEN A CHANGE IN EXISTING POLICY SO AS TO
 GIVE RISE TO A DUTY TO BARGAIN AND FOUND THAT THE PR